A.D. 1998 No. 40 J.C.S. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: IVAN JOSEPH MORIN and HER MAJESTY THE QUEEN as represented by the Attorney General of Saskatchewan RESPONDENT R.P. Piche for the accused J.L. Halyk for the Crown FIAT LAING J. December 8, 1998 [1] The accused seeks an order for a judicial stay ofproceedings pursuant to ss. 24(1) and (2) of the CanadianCharter of Rights and Freedoms (Charter) on the basis hisright under s. 11(b) of the Charter to be tried within areasonable time has been breached. BACKGROUND FACTS [2] The background facts are as follows: 1. The date of the alleged offence is May 17, 1996. 2. The date of the Information is October 10, 1996 andcharges that the accused "on or about the 17th day of May,A.D. 1996 . . . did unlawfully traffic in a narcotic, to wit:morphine, contrary to section 4(1) of the Narcotic ControlAct." 3. The accused`s first appearance on the charge was January 20, 1997. At that time he was remanded to January 24 by consent at his request, and then further remanded by consent to January 27, 1997 for show cause hearing. On January 27 he was released on cash bail and the matter was set over to February 11, 1997 for election. On February 11, 1997 preliminary hearing date was set for October 27, 1997 by 4. On October 24, 1997, the accused`s lawyer telecopied letter to the then prosecutor, Mr. Dale Kohlenberg, further to telephone conversation he presumably had with Mr. Kohlenberg earlier that day. The letter said in part: scheduling conflict the writer has for Monday would be greatly resolved if, upon your review of the enclosed you indicate you will not be able to proceed with the preliminary inquiry. For absolute clarity, will intend on advancing argument pursuant to the Lindskog case (R. v. Lindskog (1997), 117 C.C.C. (3d) 551 (Sask. Q.B.)), in advance of the commencement of the preliminary inquiry. Obviously, no notice has been given as this matter just came to light on today`s date. So in any event, if you are not disposed to absenting yourself, will be asking for an adjournment in order to provide the appropriate notice. 5. On October 27, 1997, the date scheduled for the preliminary inquiry, defence counsel advised the Court that he was objecting to Mr. Kohlenberg continuing as prosecutor because Mr. Kohlenberg had represented the accused three to four years ago on show cause hearing when he was in private practice. He indicated he wished to bring an application to have Mr. Kohlenberg removed and requested date for such application to be heard. At that point both counsel were sent back to docket court to have date set for hearing the application. 6. Before the docket court judge Crown counsel indicated that as far as dates for hearing the application were concerned he was at defence counsel`s "leisure". Counsel then met with the court coordinator to find suitable date for the one-half day argument. Crown counsel then advised the Court: My learned friend and have reached an agreement as to date that is available, being March 5, 1998, at 9:30 in Courtroom #9, for the hearing of the Charter application. He also indicated to the court that second date of April 15 at 2:00 p.m. had been selected for the preliminary inquiry 7. With respect to the appearances before both judges defence counsel stated he was not waiving delay. On the appearance before the docket judge defence counsel stated: Your Honour, think I`d like it clearly noted, or at least endorsed on the Information, that but for this we were prepared to proceed with the preliminary inquiry today. And certainly it`s something that was raised, and think the endorsement should read that Defence is not waiving delay on this. Defence counsel was asked by the Judge when he became aware of the problem and he indicated the previous Friday, being October 24, 1997. 8. On March 5, 1997, at the opening of court, defence counsel advised the court that he had just received the previous day the Crown`s affidavit in opposition to his application, and had only recently received the Crown`s memorandum of law. Defence counsel asked for an adjournment to prepare response because he understood the Crown was now objecting to the jurisdiction of the Provincial Court to hear the application. Crown counsel advised the Court this was not the case. At that point the Court raised the issue of whether the Law Society should be requested to provide input with respect to the alleged conflict of interest. Defence counsel indicated he thought that was good idea. After further discussion the Court went on to state as follows: Could word it this way, that the court and please endorse it and it will be with this exact wording that the Court has asked the parties` counsel to contact the Law Society of Saskatchewan to determine if they are able to offer any don`t want to say opinion any information on this point, and if they have any interest in this question before the Court. The application was adjourned to the date selected for the preliminary inquiry being April 15, 1997, and new date was set for the preliminary inquiry on June 2, 9. On April 15, 1998, the court was advised that Mr. Kohlenberg had been transferred to the Civil Law Division of the Department of Justice, and new prosecutor had been assigned to the file. The Court was advised the application was now moot. The record indicates the Court was simply advised there was no need to proceed with the argument and the matter was adjourned to the preliminary inquiry date of June 2, 1998. 10. On June 2, 1998, the preliminary inquiry hearing took place and the accused was committed for trial. 11. On August 7, 1998, pretrial conference was held after receipt of the transcript from the preliminary inquiry and trial date of November 13, 1998 was 12. This motion was argued on November 13, 1998. The accused was arraigned and pleaded not guilty. He then testified on voire dire with respect to this application. The accused`s evidence was directed at trying to emphasize he was genuinely concerned that he would be prejudiced in his defence if Mr. Kohlenberg remained on the file. He testified he anticipated testifying at his own trial. He outlined what he recalled he would have discussed with Mr. Kohlenberg including his personal background. He estimated he would have spoken to Mr. Kohlenberg for approximately one-half hour. [3] With respect to the issue of prejudice, Mr. Morin indicated he is married with three children and states the delay has been hard on him and his family not knowing what will eventually happen over this period of time. He states the condition attached to his recognizance which restricts him from leaving Saskatchewan has prevented him from attending meetings out of the Province on at least four occasions which he wanted to attend. He indicated that his employment with company he referred to as Aboriginal Consulting Services has been affected over the two years because he is not able to take on longer term contracts as he does not know what will eventually happen with respect to his guilt. Finally, Mr. Morin indicated he has been an opiate addict for the last 20 years, and in recent years has been on methadone maintenance program. He indicates the stress of the last two years has kept him at reasonably high maintenance level, which he would otherwise have hoped to reduce to lower level by this time, but has not been able to do so due to the uncertainty associated with the delay. He agreed he has not been prejudiced in his ability to make full answer and defence to the charges by reason of the delay. POSITION OF DEFENCE COUNSEL [4] Defence counsel takes the position that at no point along the way did he waive delay, and the delay of approximately seven months which resulted from his desire to have ruling made on the conflict of interest alleged is solely attributable to the Crown. Defence counsel had been counsel for Mr. Lindskog in the case above referred to which had been decided in July 1997. On the facts of that case McLellan J. of this Court held Crown counsel was in conflict of interest as he had earlier represented the accused three and one-half years earlier on theft charge. He found: am satisfied that reasonably informed person would find it offensive to his or her standards of fairness that lawyer who acted on behalf of client would be allowed to prosecute that same client for an unrelated offence committed less than two years following the retainer. McLellan J. also held at p. 565: there is clearly the risk that the insights he [Crown counsel] gained will be used to the prejudice of the former client if the applicant elects to testify. Defence counsel`s position in this matter is that the facts in the Lindskog case are indistinguishable from the facts in this case, and it should have been obvious to Crown counsel the Charter application would be successful and Crown counsel would be removed. POSITION OF THE CROWN [5] Crown counsel filed an affidavit by Mr. Kohlenberg, in which he indicated he had the vaguest of memories of having acted for Mr. Morin on show cause hearing number of years before but had no recollection of what transpired at that time, and that he had not acted for Mr. Morin beyond the show cause hearing. The affidavit indicates why Mr. Kohlenberg opposed the request that he remove himself from the file. Paragraph 19 of his affidavit states as follows: 19. THAT from the research of case authorities which conducted in respect of this matter, it appeared to me that there was conflicting judicial opinion upon this issue, and some question as to court`s authority to rule on the application proposed to be brought by the Accused`s counsel at the preliminary hearing stage. Even if the judicial authorities then applicable in Saskatchewan were accepted, there appeared to be sound reason for distinguishing them in the particular circumstances of this case, at least at the preliminary hearing stage of the prosecution. Attached to this Affidavit and marked as Exhibit "B" is copy of the Memorandum of Law and Argument which had helped to prepare in respect of these legal issues. [6] Crown counsel takes the position the opposition by Mr. Kohlenberg to defence counsel`s request was prompted by good faith, and was not without merit. She takes the position that all consent adjournments from October 24 on were at the request of both counsel and cannot be attributed solely to the Crown. With respect to defence counsel`s statements along the way that he was not waiving delay, Crown counsel states the incantation of such words is not conclusive, and in each case where delay is alleged, it is necessary for the Court to go through the Morin analysis (R. v. Morin (1992), 71 C.C.C. (3d) (S.C.C.), Sopinka J. at p. 13). ANALYSIS [7] For the reasons which follow the application isdismissed. [8] The 25 months between when the charge was laid on October 10, 1996, and the trial date of November 13, 1998, is sufficient delay to raise the issue of the reasonableness of [9] It will be observed from the foregoing chronology that three and one-half months of the delay (October 10, 1996 to January 27, 1997) occurred after the information was sworn and before the accused was arrested. Seven months of thedelay is due to the scheduling delays which occurred as aresult of defence counsel`s application to remove theprosecution counsel prior to the preliminary hearing (October27, 1997 - June 2, 1998). All other proceedings are withinthe systemic guidelines. (Vide: R. v. Morin, supra, at p. 21, per Sopinka J., where he indicated 8-10 months in Provincial Court, and for trial, 6-8 months in addition to the delay prior to committal). [10] Defence counsel is correct in stating the accused did not explicitly or implicitly waive delay (Vide: R. v. Morin, supra, per Sopinka J., at p. 15). The issues left to be determined in deciding if the delay of 25 months was unreasonable, are the actions of the Crown, the actions of the accused, and prejudice to the accused. Three Months Between Information and Arrest [11] The case law holds that the time for measuring delay is from the time the charge is laid until the date of trial (R. v. Kalanj (1989), 1989 CanLII 63 (SCC), 70 C.R. (3d) 260 at p. 272 (S.C.C.), R. v. Tindale (1997), 1997 CanLII 632 (ON CA), 47 C.R.R. (2d) 304 (Ont. C.A.)). In the foregoing cases the issue was precharge delay and its relevance to s. 11(b) of the Charter. The cases did not specifically address the situation where there is delay between the time the information is sworn and the accused is arrested or summoned to Court. It is not too fanciful to imagine there are cases where the time between laying the information and the accused`s arrest could be considerably longer than the three months in this case. For this reason, am of the opinion, that the foregoing cases establish that the earliest time delay will be considered pursuant to s. 11(b) is the time of swearing the information, but this does not mean that is the only time from which the length of delay is to be [12] As noted by Sopinka J. in R. v. Morin, supra, at p. 12: 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. 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 pretrial incarceration and restrictive bail conditions. The right to fair trial is protected by attempting to insure that proceedings take place while evidence is available and fresh. When there is delay between the laying of the information and the first appearance of the accused, the only one of the three individual rights above referred to that could possibly be affected is the right to fair trial. [13] If the delay from the time the information is sworn to the first appearance is substantial, it may be reasonable to embark on an inquiry why the delay occurred and specifically whether fair trial had been adversely affected by such delay. In this case there is no evidence on the reason for this three- month delay. It is not known whether it was due to actions of the accused, or to the actions of the Crown. What is known, is the accused`s right to afair trial has not been prejudiced by the total timedelay involved. As noted above, his right tosecurity of the person and his right to liberty werenot affected during this period. Seven Month Delay Due to Application to Remove Prosecutor [14] The application brought by defence counsel to have Mr. Kohlenberg removed falls into the category in the Morin analysis of "actions of the accused". As noted by Sopinka J. at pp. 17-18 of that decision: (b) Actions of the accused This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. It was defence choice to make an issue of the prosecutor`s involvement at the last minute prior to the scheduled preliminary inquiry date when it would be unreasonable to expect quick answer from the Crown on such matter, and when there would have been ample time to have the question resolved following committal and prior to trial without any real prejudice to the accused in the interval. [15] It is not for me on this application to decide how the motion would have been decided had it proceeded. It is sufficient to say that the Crown`s position that the issue of conflict of interest being raised at the preliminary inquiry stage as opposed to the trial stage was sufficient distinction from the ratio decidendi in Lindskog, supra, to justify the Crown`s opposition. Secondly, the Crown`s position that any ruling made by the preliminary inquiry judge would be restricted to the conduct of the proceedings at the preliminary inquiry (s. 537(i) C.C.C.) and could not extend to binding the trial judge following any committal was also valid point. This point is mentioned simply to indicate there was another reason why the application could have been postponed and dealt with by the trial judge thus avoiding the possibility of the matter being argued twice. [16] The foregoing points cause me to conclude the Crownin opposing the application did so in good faith,and it did have a meritorious position (regardlessof whether it was a winning position) (Vide: R. v.Sander (1995), 1995 CanLII 1229 (BC CA), 30 C.R.R. (2d) 359 (B.C.C.A.), perFinch J.A., at pp. 368-69). The foregoing points also cause me to conclude the Crown does not share in the responsibility for this period of delay. Prejudice to the Accused [17] The accused has been on bail since shortly after hisarrest. He agrees the delay has not resulted in a diminutionof his ability to make full answer and defence. He has been employed throughout the period of time since his release. The prejudice he refers to in not being able to enter into long term contracts or travel out of the Province on several occasions would have existed only for 21-1/2 months of the 25- month delay, and would have existed in any event for at least 15 months of that period of time. I thus describe theprejudice to his liberty interest as minor. [18] No evidence was offered by the accused of stress or damage to his reputation, and in fact arguably the evidence he did give suggested his reputation was not affected at all by the charge he was facing. The prejudice he described of individual stress and family stress over the eventual outcome of the charge is the expected and normal prejudice faced by every person charged with an offence. The absence of any special prejudice again causes me to describe the prejudice to his security interest as minor. CONCLUSION [19] Taking the foregoing factors into account I concludethe delay in the circumstances outlined above was notunreasonable. Further, and in any event, the minor prejudicesuffered by the accused beyond the expected and normal is notsufficient to outweigh society`s interest in bringing thosecharged with criminal offences to trial. [20] The application is dismissed.
FIAT. The accused, charged with trafficking in a narcotic, sought an order for a judicial stay of proceedings pursuant to s.24(1) and (2) of the Charter on the basis his right under s.11(b) to be tried within a reasonable time has been breached. HELD: The application was dismissed. The delay was not unreasonable.  1)The 25 months between when the charge was laid in May 1996 and the trial date in November 1998 was sufficiant delay to raise the issue of the reasonableness of the delay. Defence did not waive delay. 2)There was no reason given for the three and one-half month delay between the swearing of the information and the arrest. The accused's right to a fair trial had not been prejudiced by the total time delay. His right to security of person and to liberty were not affected. 3)Seven months delay was due to scheduling delays resulting from defence's application to remove prosecution counsel who had previously represented the accused. The Crown acted in good faith in opposing the application and had a meritorious position. 4)All other proceedings were within the systemic guidelines. 5)Prejudice to his liberty was minor as he was on bail since shortly after his arrest. He was able to make full answer and defence. He was employed throughout since his release. His inability to enter long term contracts or travel out of province would have existed for 21-1/2 months of the 25 month delay in any event. 6)Individual and family stress is to be expected. The minor prejudice beyond the normal and expected was not sufficient to outweigh society's interest in bringing those charged with criminal offences to trial.