Investigatory delay or inefficiency alone not basis for abuse of process: Sask Court of Appeal

Charge against inmate not sworn until after period to appeal conviction expired

Investigatory delay or inefficiency alone not basis for abuse of process: Sask Court of Appeal
Late investigation report does not always mean acquittal.

The Saskatchewan Court of Appeal has upheld a finding that investigatory delay or inefficiency alone is not a basis for abuse of process that warrants acquittal of an inmate’s assault charge.

In R v. Watetch, 2022 SKCA 91, Kelfert Watetch was an inmate at the Saskatchewan Penitentiary in Prince Albert, SK. In 2018, Watetch was charged with the second-degree murder of a fellow inmate.

Six months later, another inmate at the penitentiary was assaulted by a group of individuals, and Watetch was identified as a suspect. Constable Schmidt, a member of the Prince Albert RCMP, headed the investigation, but the inmate refused to cooperate.

Cst. Schmidt received evidence from the penitentiary’s Security Intelligence Officer (SIO). After examining it, Schmidt requested an officer recognition report to make sure that there was a penitentiary guard who could identify Watetch as an assailant.

A few days later, Schmidt became lead investigator in a different, high priority case that lasted several months. When he returned five months later, Schmidt noticed that the report was not yet received and requested it again.

After reviewing the report, Schmidt swore an information charging Watetch of assault. However, the judge acquitted Watetch, having found a breach of his charter rights. The judge found that while the delay was not lengthy, the combined effect constituted an abuse of process, prejudiced Watetch, and therefore was unreasonable. She also found that the identification evidence from the officer recognition report infringed Watetch’s rights and excluding it would remedy the breach.

The Crown appealed, arguing that the judge erred in her analysis.

The appellate court agreed and ordered a new trial.

Delay in investigation not always grounds for acquittal

Investigatory delay or inefficiency, in and of itself, is not a basis for finding an abuse of process, said the appellate court. The court found that Schmidt’s failure to push the investigation forward and the SIO’s failure to provide the identification report were not grounds for finding an abuse of process.

Further, the appellate court found no prejudice because of the delay. The judge’s analysis was anchored on the idea that expiration of Watetch’s period to appeal his previous conviction for second-degree murder was caused by the delay. However, this was ill-considered since Watetch had pleaded guilty to the charge and Schmidt did not swear the information for assault until a month after the expiration of the period to appeal the murder conviction, said the court.

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