Information 24191289 2007 SKPC 01 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT BUFFALO NARROWS, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- MARJORIE LOIS HANSEN Gerald Perkins For the Crown James Scott For the Accused January 3, 2007 E. Kalenith, P.C.J. JUDGMENT INTRODUCTION [1] Marjorie Hanson applies for relief pursuant to The Canadian Charter of Rights and Freedoms (“the Charter”) on the basis of post-charge delay denying her the right to have her trial in a reasonable time. I find that there was a Charter breach and that the appropriate remedy is a stay of proceedings. My reasons follow. [2] The accused is charged that: on or about May 18, 2004, at Buffalo Narrows, Saskatchewan, she did: Count unlawfully produce Cannabis Marihuana contrary to Section of the Controlled Drugs and Substances Act (“the CDSA”) and Count unlawfully possess Cannabis Marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to Section 5(2) of the CDSA. HISTORY OF PROCEEDINGS [3] The following dates are relevant to this application: (a) May 19, 2004 the Information was sworn charging the accused; (b) May 19, 2004 the accused first appeared in court with Legal Aid as her counsel, was released on an Undertaking Given to Judge subject to number of restrictive conditions, and the Information was adjourned to September 8, 2004 for disclosure; (b.1) August 24, 2004 the defence forwarded Consent Order to the Crown authorizing opening of sealed Search Warrant and Information to Obtain, the edited copy of which was provided on November 2, 2004, only after counsel for the co-accused consented to the Order in late October 2004; (c) September 8, 2004 the Information was adjourned to October 6, 2004, and then to November 3, 2004, for defence election on Count 2; (d) November 3, 2004 defence election of Queen’s Bench Judge Alone made and then the Information was adjourned by the defence to November 17, 2004, then to December 8, 2004, then to February 23, 2005 (on which date reelection was made on Count to Provincial Court), and then to March 9, 2005, in each case to be spoken to; (e) March 9, 2005 not guilty plea was entered and the trial was set for September 28, 2005; (f) September 28, 2005 the Information was adjourned at defence request to October 19, 2005, then to October 26, 2005, then to November 19, 2005, and then to December 14, 2005, in each case to be spoken to; (g) December 14, 2005 new trial date was set for June 14, 2006; (h) June 14, 2006 the trial was adjourned to November 29, 2006 at Crown request, the Accused not waiving delay; (i) November 29, 2006 the trial was adjourned at Crown request due to the inability of some Crown witnesses able to travel to Buffalo Narrows in the bad weather, new trial date being set for January 19, 2007, the defence not waiving delay; (i.1) December 13, 2006 Charter motion argued and decision reserved to this date. [4] The relevant time periods are: (a) From May 19, 2004 to mid-June, 2004 date of swearing the Information to the date of an interview by Legal Aid defence counsel two months; (b) From June 2004 to November 2004- delay in unsealing and obtaining edited copy of search warrant documents five months; (c) From November 2004 to March 2005 adjournments at defence request until the defence was ready to set trial date four months; (d) From March 2005 to September 2005 time from plea to the earliest trial date six months; (e) From September 2005 to December 2005 adjournments at defence request until ready to schedule new trial date three months; (f) From December 2005 to June 2006 delay to second trial date six months; (g) From June 2006 to November 2006 delay to third trial date five months; (h) From November 2006 to January 2007 delay to fourth trial date two months; (i) Date of swearing the Information to latest trial date two years, seven months. [5] In deciding whether the right to trial within reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed consider the factors outlined by the Supreme Court of Canada in R. v. Morin (1972) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1(“Morin”): (a) Length of delay; (b) Waiver of time period; (c) Reasons for the delay, including: (i) inherent time requirements; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations on institutional resources; (v) other reasons for the delay; (d) Prejudice to the accused. [6] The onus is on the accused to prove the breach on balance of probabilities. Length of delay [7] In Morin, the Supreme Court of Canada proposed that as general guideline delay of eight to ten months in Provincial Court would be acceptable. find this to be consistent with the reality in Buffalo Narrows, where trials are set within six months of entering plea. [8] The length of delay in this case from the date of charge to the date of trial is approximately thirty-one months. The Crown concedes, and find, that the length of delay is sufficient to warrant an inquiry into the reasons for the delay. [9] The accused requested the adjournments from May 19, 2004 to November 3, 2004 to seek counsel and to obtain and to obtain disclosure of the information relating to the search warrant. attribute four months of this delay to the accused because find that the Crown should have arranged for the editing of the search warrant material within one month of the consent order having been provided to it, and that it was not necessary to delay having the order issued, and the material edited, simply because counsel for the co-accused had not yet consented to the order. The delay from November 3, 2004 to March 9, 2005, delay of five months, attribute to the accused as these adjournments were at her request for the purpose of deciding defence election and entering plea. The delay from September 28, 2005 to December 14, 2005, period of approximately three months, is attributable to the accused as delay until the accused was ready to set new trial date (the second one). do not accept the Crown argument that there is waiver of the delay caused by the adjournments from the dates of December 14, 2005 and June 14, 2006. For there to be valid waiver, it must be clear and unequivocal. The endorsement is silent as to waiver from December 2005, and clearly indicates no waiver of delay from June 14, 2006, and therefore find there is no waiver of the delay for these periods of time. The total delay attributable to the accused is twelve months. The remaining delay of nineteen months occurred for the reasons indicated below. Inherent time requirements [10] Arranging for the accused’s appearance in court, and some time between plea and trial, led to some delay. deduct this six-month period from the delay being considered. Actions of the accused [11] The accused did not contribute to the remaining delay. There were some delays attributable to the accused in time until she was ready to enter pleas, and later until she was ready to have the matter rescheduled for trial, delays which were deducted above. Otherwise, she appeared on all court dates and was diligent about having the charges set for trial. Actions of the Crown [12] The remaining delay of thirteen months is either attributable to the Crown or caused by factors outside the control of the accused. Limitations on institutional resources [13] There is no evidence that any lack of institutional resources caused any delays in this case. Other reasons for delay [14] The weather caused delay from November 29, 2006 to January 19, 2007, period of two months. [15] As indicated in Morin, prejudice can be inferred from prolonged delay. [16] Evidence was led by the accused that she suffered actual prejudice because the outstanding charge has affected her ability to apply for higher-paying job opportunities, and has caused her stress and frustration. She further alleges that the passage of time makes it more difficult to properly defend against the charges. The Crown argues that the accused could have applied to amend her conditions of release, as she did in September 2004 and March 2005, so as to alleviate any restrictions that prevented her from obtaining better paying jobs. The Crown further argues that stress and frustration are irrelevant and are part of the usual effects of being subject to criminal charge. The accused argues that she was reluctant to make further applications to amend her release conditions given the amendments she had already obtained to improve her job opportunities. [17] I find that in this case the accused has suffered actual prejudice and that the delay in bringing this matter to court from the time of swearing the Information to the date of trial has prejudiced the accused’s ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, I find that these could have been overcome by applications to amend her conditions of release. [18] Given the finding of actual prejudice, the question remains as to whether the prejudice to the accused was such as to outweigh the prejudice to society that would result if the accused was not to face trial for this charge. [19] The Crown suggests, and find, that there is heightened public interest in offences of this nature, as there is in offences of violence, in having these offences tried. On the other hand, there have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached on these charges. No explanation is offered for the adjournments except for the last adjournment caused by bad weather. Fairness to the accused requires that even for offences such as these that trials be held within reasonable period of time so that the accused does not suffer undue prejudice and so that she can fairly defend herself and so that society’s interest in having these matters heard can also be done within reasonable period of time. In this case, find the prejudice to the accused outweighs the public interest in having her tried for the charge. The just and appropriate remedy under section 24 of the Charter is to grant stay of proceedings. E.Kalenith, P.C.J.
The accused applies for relief pursuant to the Charter on the basis of post-charge delay denying her the right to have her trial in a reasonable time. HELD: There was a Charter breach and the appropriate remedy is a stay of proceedings.  1) The length of delay in this case from the date of charge to the date of trial is approximately 31 months. The Supreme Court proposed as a general guideline a delay of 8 to 10 months in Provincial Court as acceptable. This is consistent with the reality in Buffalo Narrows, where trials are set within 6 months of entering a plea. 2) 12 months of the delay can be attributed to the accused. 6 months was deducted from the delay for inherent time requirements in arranging for the accused's appearance in Court. The remaining delay of 13 months is either attributable to the Crown or caused by factors outside the control of the accused. 3) In this case the accused has suffered actual prejudice in that the delay in bringing this matter to Court from the time of swearing the Information to the date of trial has prejudiced the accused's ability to make full answer and defence and her right to a fair trial. While the restrictions on employment opportunities caused some prejudice, this could have been overcome by applications to amend her conditions of release. 4) There have been four trial dates set on these charges, resulting in a lengthy delay to a verdict being reached. No explanation is offered for the adjournments except for the last adjournment caused by bad weather.