A Saskatchewan man who had his charges stayed based on pandemic delays in court will be headed back for trial, after a ruling from the Saskatchewan Court of Appeal.

According to a decision dated Jan. 18, a man charged with possession of cocaine for the purpose of trafficking successfully applied for a judicial stay of his charges. The application to the judge was based on Section 11(b) of the Canadian Charter of Rights and Freedoms, which covers trial within a reasonable time.

Preliminary hearings were adjourned twice in compliance with COVID-19 protocols then in place at the Provincial Court, determining the total delays stretching to the end of a trial would be 1,318 days.

According to the trial judge:

•  216 days were caused by defence delay
•  77 days were caused by “discrete exceptional circumstance,” the first pandemic adjournment
•  1,025 days were unaccounted for, including the second pandemic adjournment

The trial judge ruled the unaccounted for delays were above the allowed amount, or “presumptive ceiling” of 942 days and granted the stay.

“We have found that the trial judge erred in his characterisation of the second COVID 19 adjournment,” the Court of Appeal said in its decision, adding the second delay of 221 days was also exceptional circumstance, putting the case back below the ceiling.

The Crown appealed the decision based on evidence all parties, including the defence, had agreed to the second adjournment and its exceptional circumstances based in part on court records that said: “COVID adjournment, this is the earliest date available.”

The decision said the records are not an express waiver of the delay, but does show the accused had admitted the delay was both required due to the pandemic and an exceptional circumstance, through his council.

“We therefore allowed the appeal, set aside the stay of proceedings, and remitted the matter to the Court of King’s Bench for trial.”