Territorial Court

R. v. Clifford Shattler, 2015 NWTTC 01
Date: 2015 01 09
File: T3-CR-2013-000035
		          			
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


	BETWEEN:

HER MAJESTY THE QUEEN


- and -


CLIFFORD SHATTLER



REASONS FOR DECISION
of the
HONOURABLE JUDGE GARTH MALAKOE





Heard at:		Yellowknife, Northwest Territories
		
Date of Written Decision:		January 9, 2015
		
Date Application Heard:		June 4, 2014
		
Counsel for the Crown:		Annie Piché
		
Counsel for the Accused:		Charles Davison



[Section 5 of the Controlled Drugs and Substances Act]
[Application under Section 11(b) of the Charter]


 R. v. Clifford Shattler, 2015 NWTTC 01
			Date:  2015 01 09
File: T3-CR-2013-000035

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

- and -

CLIFFORD SHATTLER
________________________________________
A.	INTRODUCTION
A.1	Background
[1]	On June 4, 2014, I heard an application by the accused, Clifford Shattler, for a stay of proceedings.  Mr. Shattler’s trial had been scheduled for June 11, 2014 in Inuvik, NT.  The accused asserted that his right to be tried within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms had been breached.  On June 6, 2014, I denied the application, indicated that written reasons would follow and confirmed that the trial would take place on June 11, 2014.  On June 10, 2014, the matter was brought forward and Mr. Shattler changed his plea to guilty and a Presentence Report was ordered.  On August 1, 2014, Mr. Shattler was sentenced.
[2]	These reasons are being issued, therefore, after Mr. Shattler has been found guilty and sentenced.  Nonetheless, I have written the reasons as if they were being issued on June 6, 2014, which is when I gave my oral decision.
A.2	Issue
[3]	Clifford Shattler is charged that:
On or about the 4th day of October, 2012 at or near the town of Inuvik in the Northwest Territories, he did possess a substance included in Schedule II, to wit, Cannabis Marihuana in an amount less than 3 kilograms, for the purpose of trafficking contrary to Section 5 of the Controlled Drugs and Substances Act.
[4]	This is an offence within the absolute jurisdiction of the Territorial Court.  The trial is scheduled to take place in Inuvik, NT starting on June 11, 2014.  Counsel for the accused has brought an application for a stay of proceedings.  The accused states that his trial has not been held within a reasonable time and his right under section 11(b) of the Canadian Charter of Rights and Freedoms has been breached.  A Notice of Motion with the supporting affidavit of Clifford Shattler was filed on April 3, 2014.  In addition, the affidavit of Alanhea Vogt was filed on May 22, 2014.  Finally, transcripts of all court appearances were filed.
[5]	The accused was arrested on October 4, 2012 and released on a Promise to Appear and Undertaking on October 5, 2012.  The period between the day of the arrest (October 5, 2012) and the scheduled commencement of the trial (June 11, 2014) is 615 days or 20 months and 7 days.
[6]	In determining whether an accused has been subject to unreasonable delay, the initial step is determining the period of time between the laying of the charge and the commencement of the trial (the “Charge-to-Trial Time”).  For the purposes of this decision, I have used the date of Mr. Shattler’s arrest (October 4, 2012) as the starting point of the Charge-to-Trial Time.  There is strong argument (see Section C.2 below) that this starting point date is incorrect and that the starting point date should actually be the date that the Information was affirmed (January 18, 2013).  Using the arrest date as the starting point date favours the accused’s argument that there has been unreasonable delay since it increases the Charge-to-Trial Time by 106 days.  Given my conclusion, this additional 3 ½ months does not affect the outcome.
[7]	The Charge-to-Trial Time of 20 months is long enough that the Court must be concerned about the reasonableness of the delay.  After examining the reasons why the trial has been scheduled some 20 months after Mr. Shattler was arrested and balancing these reasons with the interests that section 11(b) is intended to protect and the prejudice that Mr. Shattler has suffered, I have concluded that there has not been an unreasonable delay and that the accused’s application for a stay of proceedings is denied.
B.	FACTUAL BACKGROUND
[8]	On October 4, 2012, the RCMP executed a search warrant at the residence of Clifford Shattler in Inuvik.  As a result, Mr. Shattler was arrested for possession of marijuana for the purpose of trafficking and released on a Promise to Appear and an Undertaking on October 5, 2012.  The Promise to Appear required Mr. Shattler to appear in Territorial Court in Inuvik on January 29, 2013.
[9]	An Information was affirmed on January 18, 2013 and the Promise to Appear which had been provided to the accused on October 5, 2012 was confirmed on the same date.
[10]	A chronology of events based on the endorsements on the Information and the transcripts of the court appearances is as follows:

Date	Day	Event
2012-Oct-05	1	Release on undertaking and Promise to Appear for January 29, 2013.
2013-Jan-18	106	Information alleging section 5 CDSA is affirmed before a Justice of the Peace.
2013-Jan-29	117	First appearance in Territorial Court in Inuvik:  Accused requests adjournment; he is medical escort for daughter; back to Inuvik on February 28, 2013; Adjourn to March 12, 2013 for plea; bail conditions changed.
2013-Mar-12	159	Court Appearance:  Crown asks for adjournment to submit application for unsealing order and to give full disclosure.  Crown wants mid-April date.  Accused asks for end of April.  Adjourned to April 30, 2013.
2013-Apr-30	208	Court Appearance:  Crown does not have file.  Adjourned to Friday, May 3, 2013.
2013-May-03	211	Court Appearance:  Joint request for adjournment for Crown to request unsealing order and for defence to review disclosure.  Adjourned to May 14, 2013.
2013-May-14	222	Court Appearance:  Defence requests adjournment after just receiving disclosure.  Crown indicates that disclosure is complete.  Adjourned to May 28, 2013.
2013-May-28	236	Court Appearance:  Defence request adjournment to August 13, 2013.  Defence made request for further disclosure the previous week.  Crown indicates preference for an earlier date.  Adjourned to August 13, 2013.
2013-Aug-13	313	Court Appearance:  Accused enters not guilty plea.  Adjourn to September 24, 2014 for accused to get legal aid.  Crown mentions possibility of trial during week of November 25, 2013.
2013-Sep-24	355	Court Appearance:  Trial date set for February 18, 2014.  Crown indicates this is the first date when all witnesses available.   Defence agrees that date is appropriate date to give an assigned lawyer time to properly prepare for the trial.
2014-Feb-18	502	Court Appearance:  Crown witness not available because of medical emergency.  Trial date set for June 11, 2014.
2014-Jun-02	606	Court Appearance in Yellowknife:  To argue section 11(b) Charter application.
2014-Jun-04	608	Court Appearance in Yellowknife:  Oral decision denying application.
2014-Jun-11	615	Court Appearance:  Scheduled date for commencement of trial.
C.	APPLICABLE LAW
C.1	Overview
[11]	Section 11(b) of the Charter states:
11.	Any person charged with an offence has the right
	(b)  to be tried within a reasonable time..
[12]	This section recognizes that once an accused is put in jeopardy with respect to a criminal charge, the state must act to ensure that the charge is concluded within a reasonable period of time.  There are a number of reasons for this.  An accused person who is subject to criminal charges may be placed in custody or may have restrictions on his or her liberty pending resolution.  An accused person may live under uncertainty and psychological stress with respect to planning for the future and may be perceived in a negative manner by his or her social contacts.  Although these are pressures that arise with any criminal charge, our justice system recognizes that no accused person has to endure these pressures longer than is reasonable.  The passage of time also results in a decaying of the ability of the accused to defend against criminal charges.  Memories fade and witnesses may not be available.  See R. v. Morin, [1992] 1 S.C.R. 771 at paragraph 27.
[13]	When an accused is subject to the jeopardy of criminal charges for an unreasonable period of time without resolution and the accused is not responsible for the delay, the Charter requires the Court to stay the proceedings against the accused pursuant to section 24(1).
[14]	The period of time between when an accused is charged with an offence and when the trial concludes is determined by a number of variables.  These include whether the offence is indictable, hybrid or summary; the seriousness of the offence; whether there are legal issues versus factual issues, the election of the Crown and the accused, the availability of Court resources, the availability of the lawyers, the volume of disclosure, the availability of witnesses and the actions, if any, of the accused in delaying the proceedings.
[15]	In general terms, whether an individual is being tried within a reasonable length of time is  determined by the framework out in R. v. Morin, [1992] 1 S.C.R. 771 and in R. v. Godin, [2009] 2 S.C.R. 3 at paragraph 18:
18     The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89.  Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect.  This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred.  It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.  As Sopinka J. noted in Morin, at p. 787, “[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11 (b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”
[16]	In specific terms, the inquiry into whether or not the period of time between charge and resolution is reasonable is a two stage inquiry.  [see R. v. Caesar, 2013 NWTSC No. 65 at paragraph 9]  Obviously, a Court making this inquiry is doing so before the matter is resolved and before the accused has been “tried.”  The Court then normally would use, as the two end points, the day when the accused is “charged” and the day when the trial is scheduled to start.
[17]	The first stage of the inquiry is to quantify this Charge-to-Trial Time and determine if it is within a general timeframe as to what would be considered to be normal given the variables indicated above.  If the Charge-to-Trial Time is within the normal range, the inquiry is over.
[18]	If the Charge-to-Trial Time is beyond what can be considered normal, then a second stage analysis is required.  From the Charge-to-Trial Time should be deducted the time that the accused has asked for, the time requested by the Crown to which the accused has agreed or waived and the time that is inherent in getting this type of charge to trial.  The remaining time can be attributed to delay by the Crown (the “Crown Delay”) and delay as a result of Court resources (also called “Institutional Delay”).
[19]	  If this delay is unreasonable, then the prejudice to the accused as a result of the delay must be examined.  This prejudice can be prejudice which has been explicitly shown by the accused or which can be implied from the passage of the unreasonable delay, unless the Crown can disprove this inference.
[20]	Whether the total delay is unreasonable and sufficient to trigger a stay of proceedings will depend on a balancing of the effect of the delay on the accused and the interest of society in having the charges resolved through trial.
[21]	Before embarking on this analysis, it is necessary to consider the legal relevance of the delay between the date that Mr. Shattler was arrested and the date the “charge was laid.”
C.2	Starting Point – When is the accused charged?
[22]	Section 11(b) of the Charter deals with a person who is “charged”.  The Supreme Court of Canada has made it clear that the time before a person is charged with an offence (the “pre-charge time”) is not to be considered when determining unreasonable delay.  The determinative case on this point is R. v. Kalanj, [1989] 1 S.C.R. 1594.  With regard to the starting point, McIntyre, J., writing for the majority at p. 1607 stated:
I would therefore hold that a person is “charged with an offence” within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn.  It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial.
[23]	The difficulty with using the date when the Information is sworn or affirmed as the starting point is illustrated in the case involving Mr. Shattler.  From the documentation before the Court, it appears that Mr. Shattler was arrested on October 4th, 2012.  He was released on October 5, 2012.  He was given a Promise to Appear which required him to be in Territorial Court on January 29, 2013.  He was released upon giving an Undertaking to the police officer in charge.  The Undertaking contained conditions requiring him to report to the RCMP and to remain within the Northwest Territories unless he had permission to travel.
[24]	The Information was not affirmed until January 18, 2013, some 106 days later.  The basis for the characterization of pre-charge delay in Kalanj as not being pre-trial delay comes from section 505 of the Criminal Code which requires that the Information be laid before a justice as soon as practicable after the accused is released from custody and in any event before the time stated in the appearance notice.  In the case of Mr. Shattler, it is difficult to see why the 106 day delay between arrest and the laying of the Information should not be considered to be pre-trial delay.  After all, Mr. Shattler had a Court date on which he had to appear and the laying of the Information seemed to be highly likely, if not a certainty.
D.	ANALYSIS
D.1	The Charge
[25]	The accused is charged with possession of marijuana for the purpose of trafficking.  The amount of marijuana alleged is less than 3 kilograms and therefore the offence falls under section 5(3)(a.1) of the Controlled Drugs and Substances Act.  By section 553 of the Criminal Code, this is an offence within the absolute jurisdiction of the Territorial Court.
[26]	Mr. Shattler was arrested after the police executed a search warrant with respect to his residence.  The defence has filed a Notice of Motion which alleges that the search was in breach of his section 8 Charter right.  The Crown has indicated that it intends to call about seven witnesses.  The Crown on August 13, 2013 described the matter as “a fairly complex one to two full-day trial.”  The defence on September 24, 2013 described the matter as “a complicated file” and “a complex file”.
D.2	Analysis of Charge-to-Trial Time
[27]	As indicated earlier, there are certain steps in the legal process between the arrest of an accused person and the trial of the accused.  In this case, these steps include the arrest, the laying of the charge; appearances in Court; providing the defence with proper disclosure; allowing defence to review the disclosure with the accused; entering a plea and obtaining legal aid approval, where necessary.  I refer to the period of time that these steps would normally require in a particular case as the Inherent Time Requirement.
[28]	I realize that assigning an Inherent Time Requirement to steps in the legal process is not without controversy.   The Supreme Court of Canada has suggested certain guidelines in R. v. Morin, [1992] 1 S.C.R. 771 but it is accepted that these are guidelines only and that time requirements are based on the factors which I have already discussed.  When I suggest Inherent Time Requirements for the steps in the legal process involving Mr. Shattler, these requirements are based on the facts unique to his case including the location of the trial and cannot be generalized to other cases.
[29]	In a case such as this, one would normally expect a delay of one or two months between the arrest date and the first appearance; another two months to have the disclosure provided; another one or two months for the accused to be in a position to enter a plea; and a further month to obtain legal aid approval before setting a date for trial – a total of seven months.  In this case, it was 355 days or slightly under 12 months between the date of arrest and the date on which the trial date was scheduled.
[30]	This extra five months seemed to result from extra time taken between the arrest and first appearance; the time for Crown to provide disclosure to the defence and the time between when disclosure was complete and the entry of a not guilty plea.
[31]	The time period between the arrest and first appearance is 117 days or close to four months.  This appears to be a delay of approximately two months beyond what would be normal.  I recognize that the Court does not sit in Inuvik during the Christmas season; however, there is no real explanation given for this delay.
[32]	The time between the first appearance and when the disclosure was complete (May 14, 2013) was 105 days or approximately 3 ½ months.  There is no adequate explanation for the extra month and ½ delay.  The accused appears to have asked for an adjournment on January 29, 2013 and for additional time on March 12, 2013; however, this should not have affected the providing of disclosure.
[33]	There was a delay from May 28th to August 13th, 2013.  This delay of 2 ½ months comes as a result of a request by the defence.   One and ½ months of this is a delay attributable to the defence in excess of the Inherent Time Requirement of one month required to review the disclosure, advise the client and to enter a plea.
[34]	The time period between August 13th and September 24th is part of the Inherent Time Requirement required to obtain legal aid and be assigned a lawyer.
[35]	The trial date was set on September 24, 2013.  To that point, I am of the view there was seven months of Inherent Time Requirement, 3 ½ months Crown Delay and 1 ½ months Defence Delay.
[36]	In this jurisdiction, one would expect to be able to set a Court date for a two day trial within four months, i.e., an Inherent Time Requirement of four months from the date on which the trial was scheduled and the trial date itself.
[37]	The time period between the setting of the trial on September 24, 2013 and the scheduled trial date of February 18, 2014 is 147 days or approximately five months.  The Crown identified this as the first date when all witnesses were available.  Defence stated, “I’ve had opportunity to speak with Ms. Miller and to review the file.  It is a complicated file and there may be, there may be some admissions and there may be an application pursuant to the Charter.  Because it is a complex file, I would agree that February 17th would be an appropriate date to give an assigned lawyer time to properly prepare for the trial.”
[38]	The comments by defence counsel were not simply acquiescence to a course of conduct already chosen by the Crown.  The comments indicate that there was a discussion between Crown and defence resulting in a decision that the February 17th date was an appropriate date in order to give the accused’s lawyer adequate time to prepare for the trial.
[39]	In my view, the five month time period is one month more than the Inherent Time Requirement, which I stated above should be no more than four months.  This was time waived by defence and not a Crown Delay or an Institutional Delay.
[40]	The trial was adjourned on February 18, 2014 to June 11, 2014.  This is a period of just less than four months.  This is a delay resulting from the Crown’s request for an adjournment.
[41]	If the trial commences on June 11, 2014 as scheduled, I calculate the Inherent Time Requirement as 11 months; Defence Delay as 1 ½ months; waived time as 1 month and Crown Delay as 6 ½ months.  There was no significant Institutional Delay.
D.3	Prejudice to the Accused
[42]	To provide the Court with evidence of the explicit prejudice experienced by the accused, Mr. Shattler filed his affidavit on April 3, 2014.  He was cross-examined on this affidavit by the Crown on June 2, 2014.  Mr. Shattler asserts that “facing the charge for so long” has had the following impacts on his life:
(a)	Knowing that he might be imprisoned if found guilty has caused him stress and anxiety;
(b)	His drinking has increased since the charge was laid due to this stress;
(c)	His release conditions, until recently, did not allow him to go with his daughter for medical appointments in Edmonton;
(d)	He is unable to move to Whitehorse to work on a two year project.
[43]	Mr. Shattler has lived with the knowledge that he could be found guilty of the charge since October 5, 2012.  I accept that there is anxiety and stress associated with living under the cloud of a criminal charge.  Clearly, Mr. Shattler would be exposed to a shorter period of stress and anxiety if the criminal charge had been resolved before the time of this application.
[44]	Mr. Shatter referred to an incident on February 13, 2014, when as a result of the approaching trial date (which was scheduled for February 18, 2014), he was found by the police drunk and asleep in a snowbank.
[45]	On the other hand, Mr. Shattler indicates that he has had consistent employment at the Legion in Inuvik (six days a week / seven hours per day) for the past four years plus assorted and regular jobs in addition to the Legion employment.  There is a construction job waiting for him in Whitehorse on a project building a high school.  The employer has indicated that the job will be held for him until the criminal matter is resolved.
[46]	It is apparent, from a review of the Undertaking signed by Mr. Shattler on October 5, 2014, that until January 29, 2013, he had to sign in at the Inuvik RCMP detachment every Wednesday and could only leave the Northwest Territories with written permission of Cpl. Doornbos.  This condition was varied on January 29, 2013 to require him only to report in person or by phone to the Inuvik detachment every Wednesday.
[47]	In summary, I find that Mr. Shattler has suffered a minimal amount of explicit prejudice as a result of the 20 month Charge-to-Trial Time.  His freedom of movement has been minimally impaired by his release conditions.  His employment has not been affected except to the extent that he is unable to take a new job in Whitehorse until the matter is resolved.  The stress and anxiety that he is experiencing is tied to the uncertainty of the outcome.  As I indicated earlier, the longer the Charge-to-Trial Time, the longer he will be exposed to this stress and anxiety.
[48]	In assessing the prejudice to Mr. Shattler, it is also informative to look at his attitude to the pace of the criminal proceedings against him.  Until February 18, 2014, there was no indication from Mr. Shattler or his legal counsel that the accused was concerned about the pace of the prosecution.  February 18th marks the first appearance of Mr. Shattler’s current counsel.  Prior to that date, the Court records show four other defence counsel.  Mr. Shattler, either personally or through his counsel, requested an adjournment or additional time beyond what the Crown was suggesting on January 29, 2013, March 12, 2013, May 14, 2013, May 28, 2013 and August 13, 2013.
[49]	It is the duty of the Crown to move the prosecution along at a reasonable pace.  Mr. Shattler has no such obligation.  When assessing the prejudice on Mr. Shattler as a result of delay, it is useful to look at his actions through the lens that if he felt that he was experiencing personal prejudice, he would express a desire to move the prosecution along or at least, not to delay it further.
[50]	There is another aspect of prejudice which must be examined which is independent of the personal circumstances of Mr. Shattler.  That is, his ability to make full answer and defence.  It is a truism that as time passes, memories fade and witnesses are lost or become difficult to locate.  In the case involving Mr. Shattler, the Crown witnesses are either police officers or expert witnesses.  Normally, the police officers will have taken adequate notes which record their memories.  In a drug prosecution such as this, with these types of witnesses, the effects of delay are not as pronounced as they would be with civilian witnesses.
[51]	Defence counsel concedes that there is not sufficient evidence to establish “strong or extreme” prejudice.   I would find that there is minimal evidence of prejudice beyond what can be inferred by the passage of 20 months.
E.	CONCLUSION
[52]	The trial for Mr. Shattler is scheduled to begin approximately 20 months after he was arrested.  Given the nature of the charge and the anticipated trial, the Inherent Time Requirement should have been approximately 11 months.  The additional time consists of Defence Delay, waived time and approximately 6 ½ months of Crown Delay.
[53]	There was no indication by Mr. Shattler that he was concerned with the pace of the process until February 18, 2014, when the Crown sought an adjournment because of a medical emergency involving one of its witnesses.  I am of the view that Mr. Shattler has suffered no prejudice beyond what might be implied as a result of having this charge outstanding for 20 months.
[54]	For the reasons stated in this decision, I conclude that there has not been an unreasonable delay.  The accused’s application for a stay of proceedings is denied.


	
	
		Garth Malakoe
T.C.J.
Dated at Yellowknife, Northwest Territories, this 9th day of January, 2015.		

R. v. Clifford Shattler, 2015 NWTTC 01
	
Date:  2015 01 09
File: T3-CR-2013-000035


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



BETWEEN:

HER MAJESTY THE QUEEN

- and -

CLIFFORD SHATTLER




REASONS FOR DECISION
of the
HONOURABLE JUDGE GARTH MALAKOE




[Section 5 of the Controlled Drugs and Substances Act]
[Application under section 11(b) of the Charter]