R v Lam, 2016 ABQB 489

Court of Queen ’ s Bench of Alberta Citation: R v Lam, 2016 ABQB 489 Date: 20160901 Docket: 130178791Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent / Crown - and - Stephen Lam Applicant / Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I. I ntroduction [ 1 ] The Accused, Stephen Lam, applies for stay of the proceedings against him, alleging his

section 11(

b) Charter right to a trial within a reasonable time has been breached. From the time Mr. Lam was charged in February 2013 to the anticipated completion of his trial in September 2017, a total of 55 months will have elapsed. [ 2 ] On February 12, 2013, Mr. Lam was charged with: 1. several counts of possession of cocaine and marijuana for the purposes of trafficking contrary to section 5(2) of the Controlled

Drugs and Substances Act, SC 1996, c 19 (CDSA), 2. two counts of possession of property obtained by crime contrary to

section 355(

b) of the Criminal Code, RSC 1985, c C-46(Criminal Code), 3. one count of possession of marijuana contrary to section 4(1) of the CDSA, and 4. one count of possession of ecstasy for the purposes of trafficking contrary to the CDSA section 5(2). [3] This application, one of several pre-trial applications, was argued shortly before the Supreme Court of Canada issued itsdecisions in R v Vassell, 2016 SCC 26, 2016 CarswellAlta 1213; R v Jordan, 2016 SCC 27, 398 DLR (4th) 381; and R v Williamson,2016 SCC 28, 398 DLR (4th) 577.

The parties were invited to, and did, provide further written submissions following the release of thesenew decisions. [4] As one point of clarification, some comments in the Crown’s supplementary materials indicate that my comments at the June21, 2016 hearing may have been misinterpreted. On that day, I granted the defence application for an adjournment of Mr. Lam’s trial onthe basis of incomplete disclosure. I also indicated to the parties that I would release my ruling on the s 11(

b) application after the newtrial dates were secured, as this information would be relevant to my decision. It was never my intention for the adjournment to serve as aremedy for a s 11(

b) breach. I had not made my determination on whether Mr. Lam’s s 11(

b) rights had been violated on the June 21sthearing date, or even before the Supreme Court released its decision in Jordan and I requested additional submissions from counsel. [5] In Jordan, the Supreme Court replaces the existing framework for analysis of s 11(

b) applications established in the Court’searlier decision of R v Morin, (SCC), [1992] 1 SCR 771, 134 NR 312. Jordan imposes a presumptive ceiling of 30months from the date an accused is charged to the actual or anticipated end of trial.

If that period exceeds 30 months, the delay ispresumptively unreasonable and the onus shifts to the Crown to rebut that presumption by establishing the presence of exceptionalcircumstances (Jordan at paras 46-47). [6] The new framework established in Jordan, including the presumptive ceiling, applies to cases currently in the system,subject to some qualifications and a need for a contextual and flexible approach (paras 95, 105).

If the delay in question exceeds theceiling, the Crown may also rebut the presumption that the delay is unreasonable by establishing a “transitional exceptionalcircumstance”, where it “satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on thelaw as it previously existed” (para 96). [7] In Mr. Lam’s case, there has clearly been a delay of more than 30 months, even deducting the period of delay that the Crownargues should be attributed to the defence. Accordingly, the issues to be addressed are: 1.

Whether any exceptional circumstances exist to justify the delay; or 2. Whether any transitional exceptional circumstances exist to justify the delay? II. The Framework Prior to Jordan [8] Before turning to the new framework established in Jordan, it is helpful to restate the rights protected by s 11(

b) of theCharter, and the framework that existed previously under Morin. [9]

Section 11(

b) of the Charter protects the rights of persons who are the subject of criminal proceedings to be tried in a timelymanner: 11. Any person charged with an offence has the right ...

b) to be tried within a reasonable time [10] The purpose of

section 11(

b) is threefold: the protection of the right to security of person, the protection of the right to liberty,and the protection of the right to a fair trial. [11] Protection of the right to security of person is accomplished by minimizing the anxiety and stigma associated with criminalproceedings, while protection of the right to liberty is afforded by minimizing exposure to pre-trial custody and restrictive bailconditions. [12] The right to a fair trial is protected by militating against the negative effects of litigation delay such as faded memories,witnesses dying or disappearing, and the deterioration of evidence. [13] The right to a timely trial ensures that the proceedings take place while all evidence is available and fresh. [14] The courts have also recognized a secondary interest of society as a whole: ensuring not only that persons accused of crimesare treated fairly, but also that those who transgress the law are brought to trial and dealt with according to law in a timely way. [15] Thus, the right to a trial within a reasonable time is not a mere technical requirement afforded the accused.

It serves as alitmus test for the overall health and functioning of the criminal justice system. [16] Prior to Jordan, the leading authorities on analyzing a potential breach of a s 11(

b) right were the Supreme Court decisions of

R v Askov, (SCC), [1990] 2 SCR 1199, 74 DLR (4th) 355 and Morin. The relevant factors, summarized in Morin at787-788 were: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, (

e) other reasons for delay; and 4. prejudice to the accused. [17] In Morin, the Supreme Court established benchmarks for acceptable institutional delay. For trials in Superior Courts where apreliminary inquiry was held, that period was set at 14-18 months. This guideline was not absolute and s 11(

b) analyses still reflectedfactors such as subject complexity and limited institutional resources. As Thomas J succinctly stated in R v Vader, 2016 ABQB 55 atpara 73, 2016 CarswellAlta 97: R v Morin at para 50 sets a ‘benchmark’ for acceptable institutional delay of 14-18 months for a trial conducted in a superior court whichincludes a preliminary inquiry. However, appellate courts have made clear this guideline is not an absolute one. In R v Godin at para 5Cromwell J indicates that when those targets are “substantially exceeded”, that alone does not necessarily make a delay unreasonable.

InR v Godin other factors, such as Crown delay and low subject complexity, coupled with excessive delay, were what justified a Charter, s11(

b) remedy.

The R v Morin ‘benchmark’ is therefore more a starting point for inquiry than anything else, and instead a Charter, s 11(b)analysis should reflect factors such as subject complexity, limited institutional resources, and what Carl von Clauswitz called “friction”,which is inherent in any process, like litigation, that involves parties in a dispute or with competing interests. [18] The Appendix of comparator cases attached to the Reasons for Judgment in Vader, provides several examples where the totaldelay exceeded 50 months, yet no stay of proceedings was directed. [19] Arguably, the Morin benchmark was applied with increasing flexibility to accommodate the growing periods of institutionaldelay experienced in many jurisdictions, including this one. [20] The jurisprudence that developed after Morin reflected an emphasis on prejudice to the accused, and, specifically, whetherthe accused suffered actual prejudice.

This was the case despite that proof of actual prejudice to make full answer and defence was notinvariably required to establish a breach of an accused’s right to a timely trial (R v Godin, 2009 SCC 26 at para 38, [2009] 2 SCR 3). [21] Under Morin, the s 11(

b) analyses were also marked by complexity due to the need to characterize various periods of delay. Itwas often difficult to differentiate between “institutional delay”, “inherent delay” and “neutral delay”.

As stated in Jordan at para 37,“[t]he minute accounting [the Morin framework] requires might fairly be considered the bane of every trial judge’s existence”. [22] In Jordan at para 29, Moldaver, Karakatsanis and Brown JJ, writing for the majority, conclude that developments sinceMorin indicate the “system has lost its way” and that the Morin framework “has given rise to both doctrinal and practical problems,contributing to a culture of delay and complacency towards it”. [23] The Court identifies the following doctrinal shortcomings with the Morin framework: - The application is highly unpredictable; - The treatment of prejudice to the accused is confusing, hard to prove and highly subjective; - Long delays became “reasonable” if the accused is unable to demonstrate significant actual prejudice (Jordan at paras 31-35). [24] The Supreme Court also notes that the Morin framework required a retrospective inquiry which resulted in “many quibblesover the rationalization for the delay” (para 36). [25] Thus, the Supreme Court concludes that compelling reasons existed for the Court to depart from its own precedent and todevelop a new framework for s 11(

b) applications. III. The Jordan Framework and its Application to the Facts [26] The first step in the Jordan analysis is to determine whether the presumptive ceiling of 30 months’ delay has been reached.The period of 30 months was based on the Morin benchmark for acceptable institutional delay. For a trial conducted in a Superior Courtwhich involves a preliminary inquiry, that period was set at 14-18 months in Morin.

In Jordan, the Supreme Court provides foradditional inherent time requirements given the increased complexity of criminal cases since Morin was decided, thus establishing thepresumptive ceiling of 30 months. The delay is calculated from the time the accused was charged to the anticipated completion of the

trial. From this amount of time, any delay attributable to the defence is deducted. [ 27 ] If the total delay (after deducting any defence delay) exceeds the ceiling of 30 months, the delay is presumptively unreasonable. The onus then falls on the Crown to rebut the presumption by establishing the presence of exceptional circumstances justifying the delay. [ 28 ] In Jordan , the Supreme Court states that circumstances will be exceptional when they are “reasonably unforeseen or reasonably unavoidable” and the Crown cannot reasonably remedy the delays arising from these circumstances (para 69).

In other words, exceptional circumstances are beyond the control of the Crown. [ 29 ] Exceptional circumstances can be discrete events such as a medical or family emergency affecting the accused, a witness, counsel or the trial judge.

Even if such a discrete event occurs, the Supreme Court notes that the criminal justice system should be capable of prioritizing those cases experiencing delay because of unforeseen circumstances (para 75). [ 30 ] Exceptional circumstances can also arise if the case is particularly complex, due to the nature of the evidence or the issues, resulting in the need for inordinate trial or preparation time (para 77). [ 31 ] The new framework applies to cases currently in the system.

In those cases where the delay exceeds the presumptive ceiling of 30 months, if the Crown cannot establish exceptional circumstances justifying the delay, the Crown can also rebut the presumption of unreasonable delay by establishing that a “transitional exceptional circumstance” exists. The Crown must be able to satisfy the Court “that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (para 96).

Functionally, this resembles an alternative Morin -style analysis. [ 32 ] The Court in Jordan explicitly states it will not countenance a repeat of the post- Askov experience, where thousands of cases across the country were stayed following the release of the new s 11(

b) decision. As such, a contextual application is required, compelling recognition that the degree of prejudice to the accused and the seriousness of the offence were traditionally paramount considerations in the analysis. Notably, in Jordan ’s companion judgment, Williamson at paras 25 32-39, the majority ruled that the seriousness of an offence, or a finding of guilt, are irrelevant when conducting the transitional exception analysis.

What is instead relevant is whether a class of offense involves more time intensive or complex trials (para 37). [ 33 ] The application of the new framework should be temperate, particularly for cases of moderate complexity in jurisdictions involving systemic institutional delay ( Jordan at para 97 ). [ 34 ] I turn now to a brief overview of the facts in Mr. Lam’s case. A. Facts [ 35 ] By way of overview, Mr. Lam and his co-accused were arrested and charged on February 12, 2013. Mr. Lam’s trial was first scheduled for June 22-26, 2015, just over 28 months from the time he was charged.

Notably, this would have been beneath the ceiling set in Jordan . [ 36 ] On June 2, 2015, Mr. Davidson, Q.C., who was now counsel of record for Mr. Lam, advised the Crown that he required an adjournment of the trial.

Counsel’s reasons were twofold: he was unavailable for the scheduled trial dates, and disclosure was still outstanding, including informant-related disclosure and updated “ McNeil reports” (police disciplinary records that must be disclosed pursuant to R v McNeil , 2009 SCC 3 , [2009] 1 SCR 66 ). [ 37 ] The request for updated McNeil reports was prompted by a media report indicating that officers involved in Mr.

Lam’s investigation were facing serious disciplinary proceedings and criminal prosecution for alleged trafficking in steroids. [ 38 ] On June 4, 2015, the Crown provided a one-page McNeil package on Det Lewis, which stated that he had been charged with three counts of trafficking under s 5(1) of the CDSA , and listed the alleged dates of the offences. Det Lewis was the Exhibit handler for the seizures made pursuant to various warrants issued during the course of Mr.

Lam’s investigation. [ 39 ] On that same date, the Crown provided a McNeil report on Cst Toma which indicated that on March 27, 2015, Cst Toma had been convicted of one count of deceit and one count of discreditable conduct under the Police Service Regulation , Alta Reg 356/1990. A copy of the written decision was also provided. Cst Toma was the affiant in support of a Tracking Device Warrant for Mr. Lam’s car, a General Warrant, and a Search Warrant. [ 40 ] On June 12, 2015, the trial was adjourned. The Crown did not oppose the adjournment and defence counsel did not waive the resulting delay.

A new trial was set for June 20-28, 2016, over 40 months from the time Mr. Lam was charged. [ 41 ] On July 9, 2015, an updated McNeil report was provided on Cst Yaremchuk which indicated that following a hearing, he was convicted of one count of deceit and one count of discreditable conduct. A copy of the written decision arising from the disciplinary proceedings was provided. Cst Yaremchuk was involved in Mr. Lam’s arrest and breached the passenger window to his vehicle when he was arrested. [ 42 ] Both Cst Yaremchuk and Cst Toma admitted to purchasing steroids from Det Lewis.

The officers were found guilty of deceit for initially having denied using steroids and having denied knowledge that Det Lewis had been in possession of steroids or that he was distributing them. [ 43 ] The disciplinary matters impacting these officers, combined with their role in Mr. Lam’s investigation and arrest, put their credibility directly in issue.

[44] Defence counsel was not satisfied with the amount of McNeil disclosure provided by the Crown. In addition, defence counselsought the ancillary disclosure relating to the Informations to Obtain that were sworn by Cst Toma. [45] On October 2, 2015, defence counsel filed an application for various Charter relief, including a stay of proceedings arisingfrom the delay and the alleged breach of Mr. Lam’s s 11(

b) rights. Later in October, defence counsel filed an Application forMcNeil disclosure in relation to Det Lewis and Cst Toma. [46] A pre-trial conference was held in November 2015 and dates were scheduled for various pre-trial applications. Althoughcounsel later agreed between themselves to argue the s 11(

b) application first, I suggested, and the Crown agreed, that it would beprudent to defer my decision on the s 11(

b) application until the disclosure applications were heard and determined, given the potentialimpact on the s 11(

b) analysis. [47] On March 17, 2016, the “threshold” application was heard to determine whether the documents sought by the defence formedpart of the first-party disclosure obligations set out in R v Stinchcombe, (SCC), [1991] 3 SCR 326, 130 NR 277 orwhether they should be addressed through a third party records application pursuant to R v O’Connor, (SCC), [1995] 4SCR 411, 130 DLR (4th) 235. In reasons reported in R v Lam, 2016 ABQB 201, 2016 CarswellAlta 618, the Crown was directed torequest and obtain certain documents pertaining to the three officers.

The Crown was also ordered to disclose and produce to defencecounsel all non-privileged information that was not clearly irrelevant, on specified conditions. [48] On May 19, 2016 and June 2, 2016, approximately one month before the start of trial, the Crown provided further McNeildisclosure to the defence. [49] On June 3, 2016, defence counsel advised the Crown of outstanding disclosure and filed a further application on June 9, 2016to compel outstanding disclosure.

A hearing was held on June 15, 2016 to address outstanding disclosure and the parties agreed that theissue would be revisited on June 20, 2016, the first day of trial. [50] On June 20, 2016, defence counsel applied for an adjournment of the trial, as some significant Crown disclosure had beenprovided that morning and other disclosure remained outstanding. This included a McNeil report on a fourth officer involved in thesearch of Mr. Lam’s residence, who was identified through the McNeil disclosure provided in relation to Det Lewis. Mr.

Lam’sapplication for an adjournment was not seriously contested by the Crown. [51] On June 21, 2016, the adjournment was granted. That same day, the Crown applied to enter a stay of proceedings against Mr.Lam’s co-accused. [52] Mr. Lam’s trial was rescheduled for September 5 to 22, 2017, which will be 55 months from the date he was charged. B. Analysis under the Jordan Framework 1. Has the Presumptive Ceiling Been Reached? [53] While Mr. Lam argues none of the delay is attributable to him, the Crown argues that Mr.

Lam changed counsel in early June2015, and even if the McNeil disclosure had been provided in a timely way, counsel for Mr. Lam would not have been in a position toproceed to trial. Further, the Crown attributes the period of delay between April 20 and May 16, 2016 to the defence, as he delayed inresponding to the proposed undertakings in relation to the McNeil disclosure I ordered the Crown to produce. [54] In my view, none of the delay occasioned here can be attributed to the defence. [55] Jordan clarifies what is properly considered defence delay. It has two components.

The first is where the defence has waivedthe delay (para 61). The parties agree there was no waiver of the delay by the defence in this instance. [56] The second component is where the actions of the defence are the sole cause of the delay, either where the accused’s actionsdirectly caused the delay or where the accused engaged in tactics with the aim of delaying the proceedings, such as frivolous applications(para 63). [57] It cannot be said that Mr. Lam’s decision to change trial counsel was the sole cause of the first adjournment.

While counseladvised the Crown he was not available for the scheduled trial dates in June 2015, the Crown was not in a position to proceed in anyevent, not having provided the McNeil disclosure it was obliged to. [58] Regarding the delay in responding to the Crown’s proposed undertakings, the terms of the undertakings proposed by theCrown were amended at the May 16, 2016 hearing, so neither can this period be characterized as delay caused solely by the defence. [59] Accordingly, the delay from the time Mr.

Lam was charged in February 2013 to the anticipated completion of his trial is 55months - well in excess of the presumptive ceiling. [60] But even deducting the entire 13-month period suggested by the Crown as defence delay, the remaining period would be over41 months, still well in excess of the presumptive ceiling of 30 months. 2. Do Exceptional Circumstances Exist? [61] There is no evidence before me of any discrete events contributing to the delay.

However, I must also consider whether Mr.Lam’s case is one of significant complexity, either due to the nature of the issues in question or the evidence. [62] The parties fairly characterize the initial drug investigation as relatively routine. In 2012, the police received information from

a confidential informant that Mr. Lam was actively trafficking in cocaine. Surveillance began in January 2013. A Tracking Device Warrant for Mr. Lam’s vehicle was obtained January 17, 2013. A General Warrant and Search Warrants were obtained February 12, 2013, the day of Mr. Lam’s arrest. Mr. Lam was charged with one co-accused. [ 63 ] While Mr. Lam filed numerous pre-trial applications, most are typical for a drug prosecution. The only aspect of Mr.

Lam’s case that arguably makes it complex is the quantum and type of McNeil disclosure in issue. [ 64 ] The Crown submits that factors external to the investigation resulted in a complex prosecution. It argues that many other parties were involved in making submissions on the initial “threshold” issue as to whether the requested documents relating to the three officers were first-party Stinchcombe disclosure or whether they were the proper subject of an O’Connor third-party records application.

Many schedules had to be coordinated, and the Crown was required to address various positions of interested parties. [ 65 ] While McNeil disclosure issues are presumably infrequent, they are not inherently complex. Mr. Lam’s investigation involved three (or potentially four or five) officers who were the subject of serious misconduct or alleged criminal activity. Arguably then, this aspect lent a unique spectre to this prosecution. [ 66 ] Following the “threshold” application, the additional McNeil disclosure produced was voluminous.

One month prior to the June 20, 2016 trial, the Crown provided the defence with approximately 945 pages of disclosure from Det Lewis’ investigative file. The defence also discovered that the disc containing data obtained from the Tracking Device Warrant could not be read. When the Crown ultimately provided this disclosure in a readable format on June 3, 2016, defence counsel had to review thousands of lines of data, as well as the lengthy accompanying reports. [ 67 ] McNeil reports were also provided in relation to additional officers. A fourth officer, who had been involved in executing the search warrant in Mr.

Lam’s residence, was identified as possibly being subject to disciplinary proceedings. [ 68 ] On June 13, 2016, approximately one week before the start of trial, the five-hour long video recorded statements of Cst Toma and Cst Yaremchuk were provided to the defence. Further additional disclosure was sent on June 15, 2016, including a McNeil report on a fifth officer involved in Mr. Lam’s investigation. On the morning of the first scheduled day of trial, the defence received the video recorded statement of Det Lewis. [ 69 ] In my view, while the disclosure in Mr.

Lam’s case was more voluminous than a typical drug trafficking case, this is the only factor that arguably created some complexity. There were not a large number of anticipated witnesses, there was no significant reliance on expert evidence, there was only one co-accused, and the charges did not encompass a long period of time. [ 70 ] The increased volume of disclosure in this case falls short of elevating it to a degree of significant complexity to justify the delay. This is particularly so, in my view, when the increased disclosure does not relate directly to Mr.

Lam’s investigation, but rather to the credibility of several key Crown witnesses. [ 71 ] Even if Mr. Lam’s prosecution could be considered complex, the Crown must take proactive steps to control and address the resulting delay. [ 72 ] Jordan informs us that when the Crown chooses to initiate a complex prosecution, the corollary obligation is to “develop and follow a concrete plan to minimize the delay occasioned by such complexity” (para 79). If the Crown cannot demonstrate such a plan, it will not be able to establish exceptional circumstances.

Only in those situations that are truly beyond the control of the Crown and the beyond their ability to mitigate will delay provide a sufficient excuse for prolonged delay. [ 73 ] Despite the complications occasioned by the particular nature of the disclosure issues presented, the Crown argues it developed a plan to move matters along. At para 16 of its supplementary brief filed June 26th, 2016, the Crown cites the following examples of steps to mitigate delay:

a) Liais[ing] with record holders of the disclosure records in question and determine availability of the parties to present argument;

b) Us[ing] all court time previously set aside for various motions on disclosure (both the McNeil and ancillary disclosure hearings), and propos[ing] a flexible approach to hearing motions at various times parties were available so as to not have to adjourn any disclosure hearings;

c) Upon receiving the Court’s ruling on the McNeil disclosure issue, to obtain the entire prosecution file of Mr. Lewis and review [the] same (which included disclosure specifically ordered by the Court in relation to Cst Toma and Cst Yaremchuk), including applying a consultative approach with parties holding a privacy concern to allow them to assess their position and notify the Crown/Court of same;

d) Develop[ing] undertakings in accordance with the Court’s McNeil ruling and provid[ing] those undertakings to defence in advance of disclosure which allowed for submissions to be made by defence and the Court to rule on, the terms of the undertakings;

e) Making [the] Crown available for any Court proceedings that arose to address questions or concerns of the Court or defence counsel;

f) Liaising with ASIRT and EPS on short notice specifically with the information regarding Lee Scott, as a result of the McNeil entry that alerted counsel to the presence of records of some type. The determination of the nature of the records, and who was in possession of same was not easily determined due to the way in which the McNeil entry was worded... Ms.

Hughson attended Court on short notice to advise the Court of the nature of the records, and ASIRT[’s] position on disclosure of [the] same. g) ...suggesting the use of June 20-28, 2016 court time to deal with matters for which reliance on the late disclosure would not have an impact, such as holding voir dires on standing to challenge the warrants, or whether leave to cross-examine the affiant would be granted.

[ 74 ] The Crown argues these steps demonstrate that the Crown managed and advanced Mr. Lam’s prosecution to the best of its ability and that it has therefore discharged its onus. [ 75 ] The defence, on the other hand, argues the Crown failed to meet its disclosure obligations in a timely manner.

They argue the Crown took a complacent, if not cavalier, attitude toward its disclosure obligations rather than being proactive in devising a plan to address its obligations. [ 76 ] By June 2015, the Crown had applied for, and was granted, a mistrial in an unrelated drug prosecution because McNeil disclosure had not been provided to the defence before trial. This McNeil disclosure related to at least some of the same officers who were involved in Mr.

Lam’s investigation. [ 77 ] Clearly, the Crown’s McNeil disclosure obligations in relation to these officers should have been front and center regarding extant prosecutions in which these officers played an important role. Yet I am left with the overwhelming impression that, in this case, the Crown did indeed adopt a complacent attitude. [ 78 ] First, despite the Crown having a positive obligation to provide updated McNeil disclosure to the defence, they inexplicably failed to do so. The Alberta Serious Incident Response Team’s (ASIRT’

s) final report, completed October 4, 2014, recommended that charges be laid against Det Lewis. [ 79 ] Charges were laid in March 2015. By this date, at the latest, the Crown should have provided an updated McNeil report to the defence. The updated report was only produced following the defence request in early June 2015. [ 80 ] When the McNeil reports were provided, they contained minimal information. Not surprisingly, this prompted a further disclosure request by the defence. The defence filed an application for additional McNeil disclosure in October 2015.

Concurrently, all interested parties, including ASIRT, the Edmonton Police Service, and the affected officers, were served with notice of the application. By this time, the defence had also filed an application for various Charter relief, including a stay of proceedings due to unreasonable delay. [ 81 ] Yet, despite the looming applications scheduled in November 2015 to be heard in early January 2016, the Crown applied to adjourn the “threshold” hearing.

This was because they did not know if the Edmonton Police Service and ASIRT wished to apply for intervenor status, and the newly assigned Crown in Det Lewis’ prosecution was not available for the scheduled date. By early January, Mr. Lam was the only party who had filed materials for this application. [ 82 ] When the “threshold” application was argued in March 2016, it was clear that the Crown had made no inquiries of ASIRT, the Edmonton Police Service or the Crown in Vancouver regarding the documents in their possession, despite recognizing their potential relevancy and the potential impact on Mr. Lam’s trial.

They had not yet commenced any analysis of the documents for third party privilege, Crown privilege, privacy issues or clear irrelevancy. No index of the documents relating to Det Lewis’ criminal file was prepared or provided to the Court, because Det Lewis objected. This, despite the Crown knowing of the existence of additional, potentially relevant documents for over a year: see R v Lam , 2016 ABQB 201 at paras 82-84 . [ 83 ] Rather than adopting the proactive approach espoused in Jordan , the Crown appears to have ignored the looming problem before it.

Further, it appears the Edmonton Police Service did the Crown no favours in this case. [ 84 ] As but one example, inaccurate McNeil information from the Edmonton Police Service may have further complicated matters in this case. The updated McNeil report provided to the defence in May 2016 seemed to indicate that the Edmonton Police Service had disciplinary information in relation to Cst Scott. It was not until less than a week before trial that the Crown discovered that the documents in fact appeared to be in the hands of ASIRT, and that Cst Scott was the subject of an ongoing investigation.

No further particulars were provided by the trial date of June 20, 2016. [ 85 ] Unlike other jurisdictions in this country, the Edmonton Police have failed to adopt a comprehensive McNeil protocol that has it turn over possibly relevant documents to the Crown for its review. Instead, the Edmonton Police Service appears entrenched in a culture that closely guards the documents in its possession and fails to respond to the Crown in a timely way. [ 86 ] The lack of communication between the Crown and the Edmonton Police Service in this regard is concerning.

The process for disclosure of police disciplinary records must be transparent. It is the prerogative of the Crown, not the Edmonton Police, to decide what McNeil information should or should not be disclosed to defence counsel. [ 87 ] These are all examples of the “culture of complacency” that can no longer be countenanced. This is not an exceptional circumstance, but rather a self-inflicted injury where Crown and EPS procedures led to an unnecessary and foreseeable delay.

This is an example of where appropriate procedures and policies would have significantly controlled this potential disclosure issue and the resulting delay. Therefore, this is not an exceptional circumstance: Jordan at paras 69-70 . 3. Do Transitional Exceptional Circumstances Exist? [ 88 ] While the new Jordan framework applies to cases in the system, it must be applied contextually.

A “transitional exceptional circumstance” will arise if the Crown satisfies the Court that the delay is justified based on the parties’ reliance on the previous state of the law ( Jordan at para 96 ). [ 89 ] The Supreme Court in Jordan explicitly states that a temperate approach must be adopted to avoid an onslaught of judicial stays, as occurred following the release of the Court’s decision in Askov . Nonetheless, the Court recognized that s 11(

b) rights cannot be suspended until the system adjusts to the new framework. [ 90 ] Trial judges are advised to apply the new framework in a flexible and contextual manner (para 105).

[ 91 ] In Williamson , the Supreme Court had the opportunity to apply the new Jordan framework to a case in which the delay had exceeded the presumptive ceiling. [ 92 ] Williamson involved allegations of historical sexual assault. Mr. Williamson was convicted by a jury. A net delay of 34 months occurred to the conclusion of his trial. There were no discrete events contributing to the delay and the case did not qualify as exceptionally complex. [ 93 ] While acknowledging that the case was close, the Court found that the transitional exceptional circumstance did not apply.

In making its determination, the Court considered whether the delay could be justified under the Morin framework.

While the charges were serious and the accused did not suffer significant prejudice, the Court’s focus appears to have been on the complacency of the Crown and its failure to address significant institutional delay in contrast to the repeated efforts of the defence to move the matter along. [ 94 ] More recently, in R v Mastronardi , 2016 BCSC 1289 , 2016 CarswellBC 1948 , Kent J directed a stay of proceedings be entered, having determined that the delay of five years and eight months (or 68 months total) was simply too long for a relatively straightforward case of drug trafficking, whether under the Morin or Jordan framework. [ 95 ] Similarly, in R v Zammit , 2016 ONSC 5098 , 2016 CarswellOnt 12711 , Wright J found that a 36-month delay violated Mr.

Zammit’s s 11(

b) Charter rights and directed a stay of proceedings. None of the delay in that case was deducted as defence delay. Although the Crown argued that the transitional exceptional circumstances should apply, the Court found that the Crown was aware of the developing delay issues, and that the delay was unreasonable regardless of which framework was applied (paras 29, 32). [ 96 ] Another relevant application of Jordan during this transitional period can be seen in R v Korzh , 2016 ONSC 4745 , 2016 CarswellOnt 11986 . The Ontario Superior Court, acting as a

summary conviction appeal court, considered whether a 24-month delay violated Ms. Korzh’s s 11(

b) Charter rights in the context of a Provincial Court trial (for which Jordan has set a ceiling of 18 months). While three months of the delay was attributed to the defence, the majority of the delay was caused by the Crown’s failure to provide the video disclosure that the defence requested on three occasions. The Court found that “there was no additional responsibility on counsel for the Appellant [the accused] to “follow up” on the disclosure request” beyond these steps (para 28).

The Crown did not establish the presence of exceptional circumstances to justify the delay, and the Court ordered a stay of the charges (paras 29-30). [ 97 ] In contrast, the British Columbia Supreme Court found that “transitional exceptional circumstances” did apply in R v Curry , 2016 BCSC 1435 , 2016 CarswellBC 2152 . In that case, 42 months elapsed between the date Mr. Curry was first charged and date that the Court gave its verdict after trial.

Numerous events had contributed to the delay, including a temporary Crown stay of proceedings, delay due to the co-accused, scheduling issues, and applications for disclosure of information relating to confidential informants. After deducting defence delay and time attributed to exceptional circumstances, the total delay was 31 months. While this was still over the presumptive ceiling set out in Jordan , the Court found that the delay would be reasonable when viewed in the pre- Jordan context. The parties were cooperative and both made efforts to expedite proceedings.

No trial time was lost due to the Crown’s conduct or inaction, and some of the delays relating to numerous defence applications might have been characterized as defence delay under the Morin framework (paras 185, 188 ). Although counsel did not always act in the proactive manner that Jordan requires, the Court held that the delay was not unreasonable given the parties’ reasonable reliance on the state of the law at the time (paras 189-190). [ 98 ] In this application, the Crown emphasized the minimal prejudice Mr. Lam has experienced.

The Crown argued that aside from whatever prejudice may be inferred from the delay itself, there is no evidence of elevated prejudice to Mr. Lam. He is released on bail and his conditions are not particularly onerous. The prejudice he deposed to, the Crown argued, is prejudice arising from the charges themselves and not the delay. I agree that Mr.

Lam has not suffered significant prejudice from the delay and I acknowledge the importance of this factor under the Morin analysis. [ 99 ] I also acknowledge that drug trafficking is a serious offence and the public has an interest in ensuring those accused of this crime proceed to trial, however this factor is not a basis for extending the reasonable time to complete a trial ( Williamson at paras 25, 32- 39 ). Nevertheless, drug trials often involve significant evidentiary issues, so this is not a kind of offence scenario that can be characterized as very simple.

However, the offence subject is at most a basis for a modest extension in what is the reasonable time to bring this matter to trial. [ 100 ] I am therefore unable to conclude that a reasonable reliance on the law as it previously existed can justify the extreme delay that has occurred. [ 101 ] Most of the complexity in this case arises from the difficulties important Crown witnesses find themselves in and the significant issues of credibility that resulted. This has no connection to Mr.

Lam or anything he did or failed to do. [ 102 ] In my view, a reasonably informed member of the public would be troubled by the Crown’s lack of disclosure in this case, particularly when it relates to very important credibility issues of its own witnesses.

In that regard, the public’s confidence in the administration of justice tips in favour of ensuring that the Applicant enjoys his Charter protected right to trial within a reasonable time and ensuring that his ability to make full answer and defence is not unduly compromised because of that delay. [ 103 ] Looking at all of these factors, I conclude that under a Morin analysis, the public’s confidence in the administration of justice would require that a stay be entered. [ 104 ] Further, as I read Jordan , a contextual approach also requires the Court to consider the role the Crown played in either tolerating or ignoring delay, or alternatively, in proactively addressing and containing the delay. [ 105 ] In this case, the delay was occasioned by a combination of institutional delay and the Crown’s failure to provide disclosure in a timely way.

Unlike in Curry , it cannot be said that no trial time was lost due to the Crown’s conduct or inaction. [ 106 ] While it is difficult to predict whether timely disclosure could have avoided the first adjournment, it surely would have avoided the second one. Although Cst Toma and Cst Yaremchuk were not disciplined until May of 2015, just a month before the first scheduled

trial, the bulk of the requested disclosure pertained to Det Lewis’ investigative file. The Crown would have had knowledge of that information no later than March 2015. Had the Crown fulfilled its obligation, it would have made the appropriate inquiries, vetted the information and provided the further disclosure to the defence without prompting. Thus, the second adjournment falls squarely at the feet of the Crown. [ 107 ] The Crown appears to have wilfully ignored the situation looming on the horizon. It was aware by March 2015 that Det Lewis had been charged with trafficking in steroids.

The Crown made no effort to inquire or review documents in the hands of ASIRT, the Federal Crown in Vancouver, and the Edmonton Police Service, despite knowing these materials were potentially relevant to Mr. Lam’s trial. [ 108 ] Further, the other participants in the system, including the Edmonton Police Service, the Crown in Vancouver and the officers in question, all of whom ultimately participated in the threshold application, were equally complacent.

Despite being served with notice of the application for disclosure in October, there was no indication by early January that they wished to participate in the hearing, despite the application having been scheduled for January 21, 2016. For example, at the first hearing on January 14, 2016, the Edmonton Police Service had not yet applied for intervenor status, there was no indication that the officers wished to make submissions, and none of the Respondents had filed briefs.

The Court was advised on January 14, 2016, that in December 2015, Det Lewis’ prosecution had been transferred from Public Prosecution Services Canada (PPSC)-Edmonton to PPSC-Vancouver, and that the Crown in Vancouver was not available for the scheduled date on January 21, 2016. [ 109 ] The Crown was aware of Mr. Lam’s s 11(

b) application in October 2015. By then, the trial had been adjourned once. The Crown has failed to demonstrate it took any steps to address the delay and attempt to expedite matters. In this case, the requisite vigilance is conspicuously absent. [ 110 ] Once this trial was adjourned a second time because of incomplete disclosure, the anticipated delay became 55 months. This is clearly unreasonable. [ 111 ] In Hryniak v Mauldin , 2014 SCC 7 , 366 DLR (4th) 641 , the Supreme Court called for a culture shift in the approach to civil litigation.

So too has the Supreme Court in Jordan called for a culture shift to facilitate a more efficient criminal justice system. No doubt, this will pose a significant challenge to the various participants in the system, particularly in a jurisdiction like this one, plagued by scant judicial resources, Crown resources stretched thin, and significant institutional delays. [ 112 ] The criminal justice system is a chain that is only as strong as its weakest link. In this case the chain broke at multiple but avoidable points.

In Jordan at paras 137-141 the majority concluded its decision with a call for action by Parliament, the legislatures, and all justice system participants to identify and seize opportunities to achieve timely criminal trial resolution. I think this is also an invitation for the courts to indicate where improvement is possible. In this decision I highlighted one such weak link: McNeil information disclosure. [ 113 ] But that is not the only place where improvement is possible and necessary. This matter underwent two significant adjournments prior to its ultimate scheduled 2017 trial.

The first occurred in March 2015 and resulted in the trial date being shifted from June 2015 to June 2016: a year’s delay. As that date approached and disclosure issues persisted, the trial was once more delayed from June 2016 to September 2017: a delay of 15 months. This is sometimes called “institutional delay”, the time required for the Alberta Court of Queen’s Bench to find a new time slot for a particular matter. Even though the Lam proceeding clearly was at this point badly delayed, the Court was unable to reschedule a trial in under 15 months . This was worse than the previous delay of 12 months .

Even though the threat to Mr. Lam’s constitutionally mandated right to a timely trial had increased, the Court’s response went the opposite direction. Why? [ 114 ] I believe it is important for policy makers and the public to understand that this Court’s failure to arrange a priority trial (and instead achieving the opposite) is not the result of deficient Court policy and case management. The Supreme Court of Canada in Jordan at para 89 indicated I am the person positioned to comment on this issue given my ‘local knowledge’.

As Thomas J observed in Vader at paras 95-96 , the Alberta Court of Queen’s Bench has been crippled by years of government neglect: [95] A significant fraction of [inherent or institutional delay] would fall into the latter category because the functionality of the Alberta Court of Queen’s Bench has been badly compromised by inadequate court personnel staffing and a judicial complement that is woefully understrength on a per-capita basis when compared to other provincial superior courts in Canada . This fact is notorious and has been repeatedly emphasized by the administrative justices of this Court.

Escalating pre-trial delays are the inevitable result of this ongoing neglect of and support for the Court . [96] This is well known to experienced criminal trial counsel, such as those involved in this matter. That is one reason why I put no weight on the fact that neither sought to have this trial heard on an accelerated or expedited basis. As this Charter, s 11(

b) analysis shows, there is a powerful basis for the parties and court to engage in collaborative attempts to obtain an earlier trial date to respect Mr. Vader’s right to a timely hearing. The simple fact is that the well is dry, and any attempt to accelerate the resumed trial process would have been futile . [Emphasis added.] [ 115 ] Mr. Lam’s action illustrates this fact. The reason the earliest rescheduled trials increased from 12 to 15 months is not because the Court is unaware of or disinterested in the accused’s right to a timely trial.

Rather, this Court has no remaining resources to accelerate the hearing of delayed criminal trials. Instead, it is falling further and further behind. This, too, is another place where the chain has broken. [ 116 ] Until Canada and Alberta provide this Court an adequate judicial complement and necessary resources and staff this will be a familiar and recurring event.

IV. Conclusion [ 117 ] The Applicant has established that his s 11(

b) Charter right to trial within a reasonable time has been breached. I direct a stay of all charges. Heard on February 17, April 14, May 16, June 15, and June 20-21, 2016. Dated at the City of Edmonton, Alberta, this 1 st day of September, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Dawn M. MacDonald of Public Prosecution Service of Canada for the Crown / Respondent Robert H. Davidson, Q.C. of Davidson Gregory Danyluik for the Applicant / Accused