IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 075 Date: May 18, 2016 Information: 37397838, 37397839, 37397840, 37397879, 43212228, 43212229, 44072591, 900001522, Location: Regina Between: Her Majesty the Queen Appearing: Mr. D. Davidson For the Provincial Crown Mr. J.P. Malone For the Federal Crown Mr. L. Mercier For the Accused DECISION ON Section 11(b CHARTER APPLICATION M. HINDS, INTRODUCTION [1] Mr. Said Ali (Ali is charged with 56 offences set out in eight Informations. Six of these Informations involve co-accused, Osman Hassan Mohamed and/or Faysal Abdi Hassan. Most of the offences are alleged to have taken place in Regina, Saskatchewan on or about June and 7, 2012 and involve such charges as: conspiracy to commit the indictable offence of fraud by printing and/or cashing forged cheques, contrary to contrary to section 465(1)( c) of the Criminal Code, defrauding or attempting to defraud contrary to section 380(1)(b) of the Criminal Code, possession of proceeds of crime contrary to 354(a) and 355(b) of the Criminal Code, knowingly using or causing forged document to be used, contrary to section 368(1)(a) and without lawful authority have in their possession counterfeit mark, contrary to section 376(2)(b) of the Criminal Code. Mr. Ali and the two co-accused are also charged with unlawful possession of (Khat) Cathinone, contrary to section 4(1) of the Controlled Drugs and Substances Act. Mr. Ali also faces charge of breach of recognizance from May 2013. [2] full list of Mr. Ali’s charges are set out in Schedule “A”. Most of these offences are absolute jurisdiction offences as per section 553 of the Criminal Code. [3] Mr. Ali’s court proceedings began on June 8, 2012 when he faced 16 charges set out in two Informations (43212228 and 43212229). On June 12, 2012 four additional Informations (37397838, 37397839, 37397840 and 440072591, consisting of 28 charges) were sworn against him. On July 19, 2012 Information 37397879 (consisting of 11 charges) was sworn against Mr. Ali. On May 22, 2013 Information 90001522 (consisting of one charge) was sworn against Mr. Ali. [4] Mr. Robinson initially acted as legal counsel for Mr. Ali between June 11 and September 20, 2012. Mr. Tilling acted as legal counsel for Mr. Ali between October 23, 2012 and February 14, 2014. Mr. Mercier has been acting as legal counsel for Mr. Ali since March 11, 2014. [5] At court appearance on November 5, 2015, Mr. Ali elected to be tried by Queen’s Bench Judge and preliminary hearing was scheduled to commence in the Provincial Court in Regina on April 6, 2016. On March 8, 2016 Mr. Ali provided Notice of Charter application pursuant to section 11(b), alleging that his right to trial within reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (Charter) have been infringed. Mr. Ali seeks judicial stay of proceedings. At Case Management Conference on March 16, 2016 Mr. Ali re-elected to be tried on all charges before Provincial Court Judge. The Preliminary Hearing date of April 6, 2016 was vacated. The hearing of the Charter application took place on April 4, 2016. [6] have concluded, for the reasons which are outlined below, that Mr. Ali has not established, on balance of probabilities, that there has been breach of his right to be tried within reasonable time. As a result I have dismissed the application for a stay of proceedings. DETAILED HISTORY OF THE PROCEEDINGS [7] The chronology of events and court appearances in this case, as set out in the court record and the evidence heard on this application, is crucial to the disposition of the matter. It is as follows: On June 8, 2012 Informations 43212228 and 43212229 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court The Crown opposes his release from custody. Mr. Ali seeks private counsel. The matter is adjourned to June 11, 2012 for Show Cause Hearing. Mr. Robinson appears as defence counsel on occasions for Mr. Ali from June 11, 2012 until the Court grants Mr. Robinson leave to withdraw on September 20, 2012. On June 11, 2012 Mr. Ali is present (in custody) in bail court along with his counsel, Mr. Robinson. Mr. Ali is released on recognizance on Informations 43212228 and 43212229. Mr. Ali is to reside in Calgary, Alberta not to attend the Province of Saskatchewan except to attend court or appointments with counsel and to have no contact and no attendance with co-accused Osman Mohamed and Faysal Hasan. Mr. Ali is to contact the Regina Police Service by telephone each Saturday commencing June 16, 2012. The matter is adjourned to July 19, 2012. On June 12, 2012 Informations 37397838, 37397839, 37397840 and 440072591 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court. The Crown consents to his release on recognizance. The matter is adjourned to July 19, 2012. On July 19, 2012 Information 37397879 is before the court. Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on Information 37397879 and the above noted six Informations. designation of counsel is filed. The matters are adjourned to August 16, 2012 for additional disclosure. On August 16, 2012 Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on the seven above noted Informations. The matters are adjourned to September 20, 2012 for disclosure. On September 20, 2012 Mr. Ali is not present. The court grants Mr. Robinson leave to withdraw as counsel. The remarks state Mr. Tilling to represent Mr. Ali”. The matters are adjourned to October 23, 2012. Mr. Tilling (or his agent) appears as defence counsel on 17 occasions for Mr. Ali from October 23, 2012 until the Court grants Mr. Tilling leave to withdraw on February 14, 2014. On October 23, 2012 Mr. Ali is not present, Crown waives the attendance of Ali. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to December 6, 2012. On December 6, 2012 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned to be spoken to on January 16, 2013. On January 16, 2013 Mr.Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on February 13, 2013. On February 13, 2013 an agent appears for Mr. Tilling. The matters are adjourned by consent to be spoken to on March 13, 2013. On March 13, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on April 3, 2013. On April 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on May 1, 2013. On May 1, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on May 30, 2013. On May 30, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on June 27, 2013. The remarks section states: “Needs to review material”. On June 27, 2013 Mr. Ali is not present. Mr. Tilling is noted as defence counsel. An agent may have appeared for Mr. Tilling. The matters are adjourned by consent to August 22, 2013. he remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waived delay for 1month and 26 days from June 27, 2013 to August 22, 2013. On August 22, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on October 1, 2013. On October 1, 2013 Mr. Ali not present. Mr. Tilling is noted as defence counsel. The matters are adjourned by consent to be spoken to on November 5, 2013. The remarks section states “In Discussion Crown”. On November 5, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 3, 2013. On December 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 19, 2013. The remarks section states “To set date”. On December 19, 2013 Mr.Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on January 16, 2014. On January 16, 2014 Mr. Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on February 4, 2014. On February 4, 2014 Mr. Tilling appears as defence counsel. The matters are adjourned by consent for Mr. Ali to obtain new counsel on February 11, 2014. On February 11, 2014 Mr. Ali not present. Leanne Phillips appears as agent for defence counsel, Mr. Tilling. The matters are adjourned by consent to be spoken to on March 14, 2014. The remarks section states “Brad Tilling granted leave to withdraw”. Mr. Mercier has appeared as defence counsel for Mr. Ali since March 11, 2014. On March 11, 2014 Mr. Mercier appears as defence counsel for Mr. Ali. The matters are adjourned by consent to be spoken to on April 15, 2014. The remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waives delay for approximately month, from March 14, 2014 to April 15, 2014. On April 15, 2014 Mr. Ali is not present and the Crown waives Mr. Ali’s attendance. Mr. Mercier appears as defence counsel. The matters are adjourned by consent to be spoken to on May 14, 2014. On May 14, 2014. Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 17, 2014. On June 17, 2014 Mr. Ali is not present. Bench Warrant is authorized and held by Crown. Mr. Mercier appears as defence counsel. The matters are adjourned to be spoken to on August 12, 2014. On August 12, 2014 Mr. Ali is not present. Bench Warrant continues to be held by Crown. Mr. Mercier appears as defence counsel. The Court orders the personal attendance of the accused on the adjourned date. The matters are adjourned to be spoken to on August 19, 2014. The remarks section states: “The Crown no longer wants to hold the Bench Warrant. The Court gives the defence one week adjournment to have the accused present.” On August 19, 2014 Mr. Ali is present. The Bench Warrant is cancelled. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence, to be spoken to on October 7, 2014. On October 7, 2014 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence for disclosure to November 13, 2014. On November 13, 2014 Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to and for review of disclosure to January 19, 2015. On January 19, 2015 Mr. Ali is not present. Mr. Tocher appears as agent for defence counsel, Mr. Mercier. The matters are adjourned at the request of the defence to be spoken to on February 18, 2015. On February 18, 2015 Mr. Ali is not present. Mr. Ali is charged with new offence of breaching condition of recognizance as set out in Information 90001522. Mr. Mercier appears as defence counsel. All matters are adjourned to March 16, 2015. On March 16, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on April 20, 2015. On April 20, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 16, 2015. Defence waives delay. take this endorsement to mean that Mr. Ali waives delay for approximately months, from April 20, 2015 to June 16, 2015. Bench Warrant is authorized and held by Crown. The remarks section states: “Designation (of Counsel) to be filed”. On June 16, 2015 Mr. Ali and Mr. Mercier are not present. The matters are adjourned to June 17, 2015. The remarks section states “(Crown) to contact Louis Mercier”. On June 17, 2015 Mr. Ali is not present. It appears Mr. Mercier was also not present. The matters were adjourned by the court to June 22, 2015 to be spoken to. The remarks section states: “Crown couldn’t get in touch w/ legal counsel.” On June 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on July 21, 2015. On July 21, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on August 18, 2015. On August 18, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on September 22, 2015. The remarks sections states: “(Form) R1 filed”. On September 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on October 13, 2015. On October 13, 2015 Mr. Mercier appears as defence counsel. The matters are adjourned for plea to November 3, 2015. On November 3, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. Accused waives reading of election and elects trial by Judge without Jury. The matters are adjourned to January 20, 2016 for case management. The remarks section states: “Preliminary hearing dates set to April 4, 2016 #10 at 9:30 a.m.” On January 20, 2016 Case Management conference is to take place regarding all charges. The Crown is not present. Mr. Mercier appears as defence counsel. The matters are adjourned to February 3, 2016. On February 3, 2016 The Case Management conference takes place on all charges. Case Management adjourned to March 11, 2016. The Court brings to the attention of both counsel that most of the charges are within the absolute jurisdiction of the Provincial Court. On March 11, 2016 The Case Management conference continues on all charges. Case Management adjourned to March 16, 2016. On March 16, 2016 The Case Management conference continues on all charges. Defence re- elects to trial by Provincial Court Judge for all charges. The Charter application is adjourned to April 4, 2016. The preliminary hearing/ trial dates scheduled for April 4, are 2016 vacated. On April 4, 2016 The Charter application is heard. The trial is scheduled for September 12 15, 2016. [8] On April 4, 2016 Rachel Casey and Mr. Ali testified on the Charter voir dire. The Evidence of Rachel Casey [9] Rachel Casey does reception work for Mr. Mercier. On March 7, 2016 she swore an affidavit respecting this matter she also testified. Her evidence reveals Mr. Mercier has been endeavouring to set hearing date for Mr. Ali since February 6, 2015. [10] According to Ms. Casey, Mr. Mercier wrote to counsel for the Crown, Mr. Brúlé, on February 6, 2015 regarding seven of the eight Informations pertaining to Mr. Ali and enclosed Form R-1 to be completed by Crown Counsel. Form R-1 is entitled “Hearing Date Required, Accused Represented by Counsel”. Counsel for the defence and Crown are to complete Form R-1 by providing written information in various portions of the form. These portions include: elections, type of hearing required, number of witnesses which will testify, estimate of time required for the hearing and six matters pertaining to hearing readiness. Once the form R-1 is completed by counsel for the defence and the Crown it is submitted to Ms. Miller, the Case Manager at the Provincial Court in Regina, who will assign date for the hearing. Mr. Mercier completed his portion of Form R-1. He expected the hearing to take one full day. [11] Mr. Mercier wrote to counsel for the Crown, Mr. Brûlé second time on August 4, 2015 and third time on September 22, 2015. On each occasion he once again he enclosed the Form R-1 which he had completed and requested Mr. Brule to execute the form and forward it to Ms. Miller. Mr. Mercier sent an e-mail correspondence to Mr. Brûlé on October 6, 2015. Once again he enclosed the Form R-1 which he completed and asked that Mr. Brûlé complete the form and submit it to Ms. Miller. [12] Mr. Malone wrote to Mr. Mercier on October 16, 2015. He advised Mr. Mercier that his office had been assigned the prosecution of Information 3797838 (drug charge) against Mr. Ali. Mr. Malone asked Mr. Mercier to advise whether he intended to set the drug charge as part of the preliminary inquiry. [13] Mr. Mercier wrote to Mr. Malone on October 23, 2015. He enclosed form R-1 which he completed in relation to Informations 43212229 and 37397838 (drug charges) and requested Mr. Malone review and execute form R-1. [14] Mr. Mercier sent an email correspondence to Mr Brûlé on October 23, 2015. He enclosed revised form R-1 dealing only with provincial charges. The Evidence of Said Ali [15] Said Ali is 56 years old. He resides in Calgary, Alberta where he is part of the Somalian community. Mr. Ali has been dealing with the majority of the charges before the court since June 2012. Since June 16, 2012 he has phoned the Regina Police Service every Saturday. He has also been to Regina three times. He is worried his case won’t be finished. He says he has been waiting 45 months and this has effected his health. He has been diabetic since 2012. He testified he has to go to the hospital frequently. [16] Mr. Ali has had lawyers acting for him on these charges. Initially, Mr. Robinson obtained his interim release. His second lawyer was Mr. Brad Tilling who was later suspended from the practice of law and could no longer represent him. When Mr. Tilling was representing him, Mr. Ali testified that he did not tell Mr. Tilling to set trial date. He left that up to Mr. Tilling. He has instructed his third lawyer, Mr. Mercier to set trial date. Mr. Ali believes that people in his community are laughing at him because his criminal charges are still before the courts. He finds the criminal charges against him to be shameful and he has tried to hide these charges from his children and the Somalian community. [17] Section 11(b) of the Charter states as follows: Any person charged with an offence has the right to be tried within reasonable time. [18] The purpose of section 11(b) was explained by Mr. Justice Sopinka in Morin, [1992] SCR 771, 1992 CanLII 89 (SCC), 71 CCC (3d) [Morin] at paragraphs 26 to 30 where he stated: 26. The primary purpose of s. 11(b) is the protection of the individual rights of accused. secondary interest of society as whole has, however, been recognized by this Court. will address each of these interests and their interaction. 27. The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to fair trial. 28. The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. 29. The secondary societal interest is most obvious when it parallels that of the accused. Society as whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 CanLII 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused. 30. There is, as well, societal interest that is by its very nature adverse to the interests of the accused. [page787] In Conway [1989 CanLII 66 (SCC), [1989] S.C.R. 1659], majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [19] Justice Sopinka then went on to outline legal frame work which the court should follow when considering these issues of an individual's s. 11(b) Charter rights as well as society's interests in protecting its citizens and ultimately law enforcement. The legal framework applicable to this consideration was described in detail by Caldwell J.A. in Wilson, [Wilson] 2013 SKCA 128 (CanLII), 427 Sask 63: ... [T]he legal framework for considering an allegation of unreasonable delay in violation of s. 11(b) of the Charter, ... was set out by Sopinka J. in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.R. 771 at pp. 787-788, and affirmed in R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.R. 3, R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] S.C.R. 45, R. v. Collins; R. v. Pelfrey, 1995 CanLII 114 (SCC), [1995] S.C.R. 1104, and others (see also R. v. Richards, 2012 SKCA 120 (CanLII), [2013] W.W.R. 637, R. v. Pidskalny, 2013 SKCA 74 (CanLII), 299 C.C.C. (3d) 396, and R. v. Walker, 2013 SKCA 95 (CanLII)). The R. v. Morin factors are: (a) The length of the delay This is threshold issue. The question is whether the overall length of time between arrest and trial is prima facie sufficient to trigger Charter scrutiny (R. v. Morin, at p. 789; and R. v. MacDougall, at para. 43). (b) The waiver of time periods Periods of delay which have been voluntarily waived by an accused who has full knowledge of the consequences of waiver are factored out of the overall length of delay under the s. 11(b) analysis (R. v. Morin, at p. 790; and R. v. Richards, at para. 25; see also: R. v. Richard, 1996 CanLII 185 (SCC), [1996] S.C.R. 525, at para. 22). (c) The reasons for the delay, including: (i) the inherent time requirements of the case, such as the time involved with processing the charges, retaining counsel, pre-trial procedures (bail applications, etc.), pre-trial conferences, police administrative work, Crown disclosure, counsel preparation, and, in some cases, preliminary inquiry hearing, which do not count against the Crown or the accused (R. v. MacDougall, at para. 44; and R. v. Richards, at para. 26); (ii) the actions of the accused, such as change of venue applications, changes of solicitor, challenges to search warrants, and adjournments (not amounting to waiver) which are directly attributable to the defence and which are voluntarily undertaken and, therefore, do not count toward the unreasonableness of the overall delay (R. v. MacDougall, at para. 48; and R. v. Morin, at pp. 793-794); (iii) actions of the Crown, such as disclosure delays, change of venue applications, and adjournments which are directly attributable to the Crown and, therefore, count against the Crown in the sense that they "cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable" (R. v. MacDougall, at paras. 49-52; and R. v. Morin, at p. 794); and (iv) limits on institutional resources, meaning delays arising due to unavailability of funding, personnel or facilities for the proper administration of criminal justice, which counts against the Crown if the institutional or systemic delay is intolerable or is itself unreasonable (R. v. MacDougall, at paras. 45 and 61; R. v. Morin, at pp. 794-800; and R. v. Richards, at para. 37). For matters in provincial courts, as base guideline, eight to ten months of institutional delay is considered tolerable (R. v. Morin, at p. 799). (d) Other reasons for delay, which may include actions of the trial court itself (R Morin, at p. 800, in reference to the circumstances in Rahey). (e) Prejudice to the accused, which may be inferred from the length of the delay itself or proven on evidence, but which may also be negated by the actions or conduct of the accused (R Morin, at pp. 801-803). 27. The accused bears the burden of proof in establishing breach of s. 11(b) of the Charter on the basis of the R. v. Morin factors (R. v. Morin, at pp. 787-788). That is, [the accused must] prove, on balance of probabilities, that in his case the particular combination of delay attributable to the Crown and any intolerable institutional delay had so unreasonably delayed the criminal justice process beyond its inherent time requirements that he had suffered prejudices resulting from that delay (but not the charges) which, together with his liberty and security of the person interests and his right to make full answer and defence, outweighed the interests of the Crown and society in seeing that justice is done fairly, quickly and efficiently (R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at pp. 1219-1223). Application of the Morin Factors (a) The Length of the Delay [20] In this case the overall length of time between arrest on June 8, 2012 and September 12 -15, 2016, the dates scheduled for trial, is approximately 51 months. I am of the view that such a period of time is sufficiently long so as to warrant an inquiry into the reasonableness of the delay. (b) Waiver of time periods [21] The court endorsements reveal that Mr. Ali specifically and voluntarily waived three periods of delay in this case: (1) month and 26 days from June 27, 2013 to August 22, 2013 and (2) month from March 14, 2014 to April 15, 2014 and (3) month and 27 days from April 20, 2015 to June 16, 2015. In Wilson at paragraph 30 Mr. Justice Caldwell indicated that “Waived time is deducted from the overall total delay and not counted at all (R Morin, at p. 790; and Richards, at para. 25).” Deducting months and 23 days from 51 months leaves approximately 46 months and one week of delay to be considered. (c) The Reasons for the Delay (i) Inherent time requirements of the case [22] Inherent delay relates to the time necessarily required to move case forward. [23] In this case find the following periods of time are attributed to inherent delay: June to September 20, 2012 Mr. Ali is arrested, charged and granted bail. Mr. Robinson (105 days) obtains disclosure during this time and is familiarizing himself with the file. October 23 to December 6, 2012 Mr. Tilling first appears as legal counsel for Mr. Ali. New (45 days) defence counsel required time to familiarize themselves with the file. May 30 to June 27, 2013 The matters are adjourned by consent from May 30 to June 27, (29 days) 2013. The remarks section states: “Needs to review material”. As am unable to determine whether the Crown or Mr. Tilling needed time to review material, am prepared to attribute this delay to inherent delay. October to November 5, 2013 Mr. Tilling in discussion with the Crown. As am unable to (36 days determine the nature of the discussion, am prepared to attribute this delay to inherent delay. February to March 14, 2014 New counsel required. Mr. Tilling is granted leave to withdraw (39 days) as counsel on February 11, 2014. The matter is adjourned to March 14, 2014 when Mr. Mercier appears as counsel for Mr. Ali. am unable to attribute this delay to the accused, as it appears Mr. Tilling was suspended from the practice of law. Hence, attribute the delay of 39 days to inherent delay. Nov. 13, 2014 to Jan. 19, 2015 The matters are adjourned by consent, at the request of (68 days) Mr. Mercier to be spoken to and for review of disclosure to January 19, 2015. Mr. Mercier as new defence counsel required time to familiarize himself with the file. Feb. 18, 2015 to Mar. 16, 2015. Mr. Ali is charged with new offence of breaching condition (27 days) of recognizance as set out in Information 90001522. Mr. Mercier familiarizes himself with new charge. In addition, Crown is given additional time to respond to Mr. Ali’s request for trial (Form R-1) previously provided to the Crown on or about February 6, 2015. 105 +45 +29 +36 39+68 +27 349 days. Therefore, find that the total time attributed to inherent delay is 349 days which is approximately 11.5 months. (ii) The actions of the accused September 20 to October 23, 2012 Change of Counsel. Mr. Robinson is granted leave to withdraw (34 days) on September 20, 2012. The remarks on the endorsement of September 20, 2012 state Mr. Tilling to represent Ali.” The matters are adjourned to October 23, 2012. take this endore- ment to mean that Mr. Ali is in the process of retaining new legal counsel, Mr. Tilling. December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. Elapsed time is 42 days. (21 days) The endorsement does not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. Jan. 16, 2013 to Feb. 13, 2013 Matters are adjourned by consent, at the request of defence. (29 days) February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. March 13 to May 1, 2013 Matters are adjourned by consent, at the request of the defence. (50 days) May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5, 2013 to Feb. 4, 2014 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. May 14 to November 13, 2014 Matters are adjourned by consent, at the request of defence. (184 days) January 19 to February 18, 2015 Matters are adjourned by consent, at the request of defence. (31 days) June 16 to June 22, 2015 Matters are adjourned. Mr. Ali and Mr. Mercier did not attend (7 days) court. 34 21 29 +14 50 +15 184 31 467 Therefore, find the total time attributed to the actions of the accused is 467days, which is approximately 15.5 months. (iii) The actions of the Crown December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. The endorsement does (21 days) not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- 15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5/13 to Feb. 4/14 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (30 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. March 16 to April 20, 2015 attribute this delay to the Crown on the basis that it had been in (36 days) possession of the request for trial, Form R-1 from Mr. Ali since February 6, 2015 and would had time to consider and respond to Mr. Mercier by March 16, 2015. While am aware that Mr. Ali was charged with other individuals, in the absence of any evidence from the provincial Crown at the voir dire for its reason in delaying responding to/completing the form R-1. attribute the delay from March 16 to April 20, 2015 to the Crown. June 22 to Nov. 3, 2015 attribute this period of delay to the Provincial Crown on the (135 days) basis that it had been in possession of the first request for trial, Form R-1 since February 6, 2016 and had time to consider and respond to Mr. Mercier during this period of time. In addition, the affidavit of Rachel Casey reveals that Mr. Mercier forwarded the same R-1 to Crown prosecutor, Mr. Dana Brûlé three more times: August 4, September 22 and October 6, 2015. In October 2015 the provincial Crown assigned conduct of the drug charges set out in Information 37397838 to the federal Crown, represented by Mr. Malone. Mr. Malone advised Mr. Mercier of this by letter dated October 16, 2015. Seven days later on October 23, 2015 Mr. Mercier forwarded form -1 to Mr. Malone respecting the drug charges. Mr. Malone completed the R-1 respecting the drug charges and forwarded the form to Case Manager, Ms. Miller on October 28, 2015. On November 3, 2015 the defence made it’s formal election in Court and preliminary hearing was set for April 4-6, 2016. It appears the provincial Crown, Mr. Brule completed the Form R-1 on or about November 3, 2015. In turn Ms. Miller completed court form entitled “Scheduling Notice” on Information 37397839, 37397840, 37397879 (Provincial Crown charges) and the drug charges (Federal Crown charges) set out in Information 37397838 on November 3, 2015. The Scheduling Notice indicates these were scheduled for preliminary inquiry on April 4-6, 2016 in Court Room #10. The Scheduling Notice was provided to the Court on November 3, 2015. Provincial and federal Crowns and Mr. Mercier appeared in Court Room #1 on November 3, 2015. On behalf of Mr. Ali, Mr. Mercier elected to be tried by Q.B. Judge without Jury and preliminary hearing dates were set for April 4-6, 2016. The matter was also adjourned for case management for January 20, 2016. 21 14 15 +20 46 +15 36 135 302 days Therefore, find the total time attributed to the actions of the Crown is 302 days, which is approximately 10 months. (iv) Institutional Delay November 3, 2015 to September 12-15, 2016. [24] In Morin the Court noted at para. 47 that institutional delay “. Is the period that starts to run when the parties are ready for trial but the system can not accommodate them. Initially the parties were ready for preliminary hearing on the indictable offences on November 3, 2015. The dates available to the parties for the preliminary hearing was five months later on April 4, 2016. On March 16, 2016 the defence re-elected for Mr. Ali to be tried before Provincial Court Judge on all the charges. The preliminary hearing did not proceed on April 4, 2016. Instead this Charter application was heard. The trial has been adjourned for approximately months and one week from April 4, 2016 to September 12 -15, 2016. In this case find that the total institutional delay is approximately 10 months and one week. [25] In Morin the court held that period of eight to ten months delay in Provincial Court would be reasonable institutional delay. This case involves 56 charges. The trial will be of moderate complexity given the type and quantity of charges. find the institutional delay of period of ten months and one week is tolerable and within the guidelines established in Morin. (d) Other Reasons for delay [26] There is no evidence in this case that other reasons have added to the delay. (e) Prejudice to the Accused [27] In Pidskalny 2013 SKCA 74 (CanLII), 299 CCC (3d) 396 Caldwell J.A. described the proper approach to the consideration of prejudice at para. 41 In R. v. Morin, at p. 801, ... Sopinka J. said that s. 11(b) of the Charter seeks to protect an accused from "[i]mpairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to conclusion". The final step in the inquiry into the circumstances of delay is to assess the prejudice that that delay has caused to these interests and, thus, to the accused. Prejudice may be actual as demonstrated through evidence, inferred from the delay itself or combination of both (R. v. Godin, at paras. 29-38; and R. v. Morin, at pp. 801-03). The longer the delay, the stronger the inference of prejudice. In addition, inferred prejudice may be enough, on balance, to establish breach of s. 11(b) (R. v. Godin, at paras. 37-38). The court must keep it squarely in mind, however, that the prejudice in question must be result of the delay and not of the charges (R. v. Rahey, 1987 CanLII 52 (SCC), [1987] S.C.R. 588, at p. 624). [28] In this case the delay to trial is long. Fifty one months will have come and gone from June 5, 2012 to the September 12 15, 2016 when these matters are to go to trial. Hence, there is strong inference of prejudice to Mr. Ali given this delay. [29] must also determine whether Mr. Ali has established that he has suffered actual prejudice as result of the delay in this case. [30] Mr. Ali was released on recognizance shortly after he was arrested and charged on the majority of the charges before the court. The release conditions are moderately restrictive. He was required to reside at his residence in Calgary, Alberta. He was to remain outside the Province of Saskatchewan unless he had an appointment with his lawyer or attended court. Mr. Ali could not contact any co-accused. Since June 16, 2012 he has been required to make weekly telephone contact with the Regina Police Service on Saturdays. [31] In the 46 months these charges have been before the court, Mr. Ali has made four personal appearances in court being: June and 11, 2012, August 19, 2014 and April 4, 2016. Otherwise, he has remained in Calgary which he considers his home. His lawyers have appeared in court on his behalf which has made things less onerous on Mr. Ali. In addition there was no evidence that Mr. Ali's right to defend the case has been compromised by lost or destroyed evidence, unavailable witnesses, or other factors due to the passage of time. [32] However, find the delay has resulted in some actual prejudice to Mr. Ali. The recognizance has placed some restrictions on Mr. Ali. He is not free to come and go as he pleases. He must reside at his home in Calgary. As result he has been unable to visit his brother in Ethiopia who is very sick. [33] Mr. Ali testified the delay has had an effect on his health. He testified he has been diabetic since 2012 and has had to go to the hospital frequently. He says he does not need the added stress of these outstanding charges. have no reason to disbelieve Mr. Ali on this point. Mr. Ali also believes that people in the Somalian community in Calgary of which he is part, are laughing at him because his criminal charges are still before the courts. This may or may not be true. However, it does point to the stress Mr. Ali has faced awaiting trial. [34] While have found some of Mr. Ali’s prejudice is real, it must also be considered in light of the fact that good portion of the delay in this case has been attributable to his actions (15.5 months). In McCance 2013, MBPC 14 Judge Kalmakoff (as he then was) held that prejudice will be given less consideration when it results from delay attributable to the actions of the accused. The court stated as follows at paragraph 39: Delay that is caused by the accused cannot be used as evidence of prejudice: R. v. Lahiry, supra, at para. 77-79. Failing to indicate preference for earlier trial dates and making no attempt to expedite the proceedings may lead to the inference that the accused is not particularly concerned with, or prejudiced by, the delay: R. v. Barkman, supra, at para 37-43; R. v. Findlater, 2012 ONCA 685 (CanLII); R. v. Sharma, 1992 CanLII 90 (SCC), [1992] S.C.R. 814. [35] During cross- examination Mr. Ali admitted that he never instructed Mr. Tilling to get trial date. Mr. Ali testified that he left such matters to Mr. Tilling. Unfortunately such confidence in Mr. Tilling seems to have been misplaced, given that during the 16 months he represented Mr. Ali he did not set either preliminary hearing or trial date. Mr. Ali also testified on cross-examination that he instructed his third lawyer, Mr. Mercier to get trial date. Regrettably Mr. Mercier’s efforts to get preliminary hearing date did not begin until February, 2015, some 11 months after he began representing Mr. Ali in March 2014. [36] Overall, I am of the view that Mr. Ali has not been particularly concerned with or prejudiced bythe delay. That is not to say the Crown has made reasonable efforts to move the matters forward to trial. Regrettably, these matters have been adjourned far too many times with the consent of the Crown. Balancing the accused’s and society’s interests [37] When I take that into account, and balance the prejudice Mr. Ali has suffered with the reasons forthe delay and society’s interest in having these 56 charges resolved by a trial on the merits, I am not satisfied on a balance of probabilities that the overall delay in this case is unreasonable. The trial should proceed. [38] am not satisfied that there has been violation of Mr. Ali’s rights under section 11(b). Theapplication for a stay of proceedings is dismissed. Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide./ca/legal/search/runRemoteLink.do?A=0.2596168711114769&bct=A&service=citation&risb=21_T22795530276&langcountry=CA&linkInfo=F%23CA%23MBQB%23sel1%252004%25year%252004%25decisiondate%252004%25onum%25252%25 1) Information #37397879 (co-accused: Said Ali and Osman Hassan Mohamed): On or about June 5, 2012, at Regina, SK did: #1 Have in their possession property, to wit: $1,500.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Criminal Code, contrary to s. 354(1)(a) and 355(b) of the Criminal Code. (Hereafter, it can be referred to as the Code). #2 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque, for $4,500.00 payable to Ryan Pilkington, and bearing the name of Western Lottery Corporation, as if it were genuine, contrary to s. 368(1)(a) of the Code. #3 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #4 Did by deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,500.00 cash, of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code June 4, 2012: #5 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $2,859.17, payable to Ryan Pilkington and bearing the name of SGI Canada, as if it were genuine, contrary to s. 368(1)(a) of the Code. #6 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on TD Canada Trust, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud TD Canada Trust of $2,859.17 of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code. #8 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $3,869.37, payable to Ryan Pilkington and bearing the name of Canadian Automobile Association, as if it were genuine, contrary to s. 368(1)(a) of the Code. #9 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #10 By deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,000.00 of value not exceeding five thousand dollars, contrary to s. 380(a)(b) of the Code. #11 Have in their possession property, to wit: $1,000.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Code, contrary to s. 354(1)(a) and 355(b) of the Code. 2) Information #37397839 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK did: #1 Conspire together to commit the indictable offence of fraud by printing forged cheques, contrary to s. 465(1)(c) of the Code. #2 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Scotia Bank, contrary to s. 465(1)(c) of the Code. #3 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Canadian Imperial Bank of Commerce, contrary to s. 465(1)(c) of the Code. #4 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 3835 Sherwood Drive, contrary to s. 465(1)(c) of the Code. #5 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 4110 Albert Street, contrary to s. 465(1)(c) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 3835 Sherwood Drive of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #8 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 4110 Albert Street, of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #9 Did by deceit, falsehood or other fraudulent means attempt to defraud Canadian Imperial Bank of Commerce 2965 Gordon Road of money, the sum of $700.00, contrary to s. 380(1)(b) of the Code. #10 Have in their possession property, to wit: Canadian currency in the amount of $895.05, of value not exceeding five thousand dollars knowing that all or pat of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355 (b of the Code. #11 Knowingly use forged document, to wit, counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Magna Foremeat Industries, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #12 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #13 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 4110 Albert Street to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #14 Knowingly use forged document, to wit: counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Clearwater Welding and Fabricating at Canadian Imperial Bank of Commerce 2965 Gordon Road, to act upon as if it were genuine, contrary to s. 368(1)(a) of the Code. 3) Information #43212228 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Conspire together to commit the indictable offence of fraud by giving forged cheques to unknown individuals and counsel them to cash the cheques contrary to s. 465(1)(c) of the Code. #2 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #3 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #4 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #5 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Cod.e #7 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #8 Have in their possession property, to wit: Canadian currency in the amount of $896.05, of value not exceeding five thousand dollars knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355(b) of the Code. #9 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #10 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #11 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #12 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #13 Knowing that document, to wit, cheque was forged, cause CIBC to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #14 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #15 Fraudulently use stamp to wit: SGI Alberta Treasury, contrary to s. 376(1)(a) of the Code. 4) Information #43212229 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: (Khat) cathinone, contrary to s. 4(1) of the CDSA 5) Information #37397838 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: 50 grams of (Khat) cathinone, contrary to s. 4(1) of the CDSA. #2 Unlawfully possess controlled substance, to wit: 80.03 grams of (Khat) cathinone, contrary, to s. 4(1) of the CDSA. 6) Information #37397840 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Without lawful authority have in their possession counterfeit mark to wit: SGI Canada, contrary to s. 376(2)(b) of the Code. #2 Without lawful authority have in their possession counterfeit mark to wit: BC Employment Assistance, contrary to s. 376(2)(b) of the Cod.e. #3 Without lawful authority have in their possession counterfeit mark to wit: Alberta Minister of Finance, contrary to s. 376(2)(b) of the Code. #4 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Clearwater Welding and Fabricating in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #5 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Magma Foremeat Industries in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #6 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #7 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #8 Possess three counterfeit cheques in the vehicle with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #9 Possess sixty counterfeit cheques in their hotel room with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #10 Fraudulently personate by counselling Jamie-Lee Hubbard to use the name of Alyssa Louison for financial gain, contrary to s. 403(a) of the Code. #11 Fraudulently personate by counselling Adam Duthie to use the name of Rolland Bell for financial gain, contrary to s. 430(a) of the Code. 7) Information #44072591 (Said Ali): On or about June 11, 2012, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit: not to contact or communicate directly or indirectly with Osman Mohamed, Faysal Hassan except through member of the law society of SK, fail without lawful excuse to comply with that condition, contrary s. 145(3) of the Code. 8) Information #90001522 (Said Abdi Ali): Between May 4, 2013 and May 11, 2013, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit, report to the officer in charge by telephone front desk Regina City Police every Saturday between the hours of 9:00 a.m. to 4:00 p.m. commencing June 16, 2012, fail without lawful excuse to comply with that condition, contrary to s. 145(3) of the Code.
HELD: The application was dismissed. The court found that the 51 months between the charges and the scheduled trial was sufficiently long to warrant an inquiry into the reasonableness of the delay. As the accused had specifically and voluntarily waived almost five months of the delay, the court deducted that amount, leaving 46 months to be considered. The various types of delay were considered by the court: 11.5 for inherent delay; 15.5 months to be attributed to the actions of the accused; 10 months to be attributed to the Crown; and 10 months to institutional delay. The court found that the accused had not suffered prejudice and as most of the delay was attributable to adjournments sought on his behalf, the court found that the overall delay in this case was not unreasonable.