R v DH, 2016 ABQB 610

Court of Queen’s Bench of Alberta Citation: R v DH, 2016 ABQB 610 Date: 20161031 Docket: 140395849Q1 Registry: Edmonton Between: Her Majesty the Queen - and - DH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] DH says his Charter s. 11(

b) right to be tried within a reasonable time has been violated and that the charges against him should therefore be stayed. [ 2 ] The indictment charges 7 counts: 1) sexual assault ( CC s. 271); 2) sexual touching ( CC s. 151); 3) indecent exposure ( CC s. 173(2)); 4) making sexually explicit material available to a child ( CC s. 171.1(1)(b)); 5) making child pornography ( CC s. 163.1(2)); 6)

transmitting child pornography ( CC s. 163.1(3)); 7) possessing child pornography ( CC s. 163.1(4)). The offences are all alleged to have occurred between September 1, 2013 and April 8, 2014. [ 3 ] An information charging the first 4 of the offences in the indictment was sworn on April 10, 2014. Mr. H was committed to stand trial in respect of all 7 counts at the conclusion of the preliminary inquiry. The Queen’s Bench judge alone trial of the charges is scheduled to commence on November 7, 2016 and to be finished on November 18, 2016.

From April 10, 2014 to November 18, 2016 is 2 years, 7 months and 1 week, or 31¼ months. [ 4 ] Mr. H accepts responsibility for 1 week, the last week, of the pre-trial period. The trial was originally scheduled to be held a week earlier but had to be postponed for one week because Defence Counsel is required to appear in the Supreme Court of Canada during the originally set trial period. Mr. H submits, however, that none of the remaining 31 months was caused solely by the Defence. [ 5 ] In R v.

Jordan , 2016 SCC 27 , the Supreme Court of Canada held that where criminal proceedings in a superior court take longer than 30 months, it is presumed that the accused’s Charter s. 11(

b) right to trial in a reasonable time has been violated. The onus is on the Crown to rebut the presumption by showing either that there are exceptional circumstances, or, in a case which commenced before the Supreme Court announced its decision in Jordan , that there are “transitional exceptional circumstances” which justify the conclusion that the delay is not unreasonable. [ 6 ] The Crown submits that in these proceedings delay totalling more than 1 month and 1 week was caused solely by the Defence. Therefore the Jordan presumption does not arise.

In these circumstances, the Defence must show that the delay was unreasonable by establishing that: 1) the Defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) the case took markedly longer than it reasonably should have. Mr. H has not done so. His application must fail. ( Jordan para. 82 ) [ 7 ] The “critical path” between the swearing of the information and the anticipated end of the trial consists, in my view, of 5 stages: a.

Information sworn (April 10, 2014) to the date on which the date of the preliminary inquiry was set (June 18, 2014) – 2¼ months. [ 8 ] During this period, Crown disclosure began but was not completed. Defence counsel was prepared to have the preliminary inquiry scheduled though disclosure was not complete. There is no suggestion that any of this 2¼ month portion of the 31 months should be attributed to the Defence. b.

Date on which the date of the preliminary inquiry was set (June 18, 2014) to commencement of the preliminary inquiry (March 16, 2015) – 9 months . [ 9 ] The preliminary inquiry was booked on June 18, 2014 by Defence Counsel’s office, for 1½ days commencing March 2, 2015. Prior to making the booking, Defence Counsel’s office asked Crown Counsel as to her available dates and she advised accordingly. The materials indicate that Crown Counsel and the Court were both available on November 27, 2014. (Affidavit of Diane Hollinshead, para. 20 and exhibit 15).

Defence Counsel, however, booked the preliminary inquiry to begin on March 2. 2015. I assume that Defence Counsel was not available on November 27. [ 10 ] The delay between November 27, 2014 and March 2, 2015, about 3 months, is therefore attributable to the Defence. ( Jordan , para. 64 ) [ 11 ] During this period, disclosure continued and was completed on October 31, 2014. The disclosure process was not a model of efficiency.

It took 5 months for the Crown to obtain and disclose a report relating to the examination and analysis of electronic evidence seized just before the information was sworn in early April, 2014. However, in my view, nothing turns on the delay in providing disclosure because the date for the preliminary inquiry had been set. In other words, in the circumstances of this case, Crown disclosure was not a critical path event. [ 12 ] During this period, in September, 2014, the Crown mentioned to Defence that the Crown was considering adding child pornography charges.

Defence Counsel recognized that this possibility continued to exist throughout the preliminary inquiry. The Crown disclosure included the Crown’s information relevant to the possible child pornography charges. [ 13 ] In November it became necessary to change the arranged dates for the preliminary inquiry because the Crown expert witness was not available on the date originally set. The new date, March 16, 2015, was about 2 weeks later than the original date.

That the expert would testify at the preliminary was clearly recognized by the Defence when this change was made. [ 14 ] Responsibility for this 9 month segment of the 31 months can be assigned as follows: - 3 months to the Defence. Defence counsel was not available for the preliminary inquiry on November 27 when both Crown and Court were available. - 5½ months to the system – institutional delay. - ½ month to the Crown. The Crown’s expert witness was not available on the original preliminary inquiry date. c.

Commencement of Preliminary Inquiry (March 16, 2015) to committal to stand trial (June 16, 2015) – 3 months

[ 15 ] The preliminary inquiry occupied a total of 2 days in 3 sessions held over the course of 3 months: March 16 (1 day); May 14 (½ day); June 11 (½ day). The preliminary inquiry judge rendered her decision on June 16, 2015. [ 16 ] Much attention was paid in the materials and the argument of this application to the reasons for this inefficiency in the conduct of the preliminary inquiry.

The causes include that Defence Counsel was not prepared to deal with the expert witness on the dates originally set for the preliminary inquiry because he had not sufficiently reviewed the disclosure that had been provided 5 months earlier and had not consulted with a defence expert. [ 17 ] Another contributing cause was that both counsel underestimated the time required to deal with the evidence of the expert witness, largely because neither anticipated that a substantial portion of the scheduled time would be required to deal with the Defence challenge to the witnesses’ expertise.

The Crown did not anticipate that requirement because the Defence did not indicate that there would be such a challenge before the commencement of the qualification voir dire . The Defence apparently did not anticipate the need for more time either. Defence Counsel had advised the court when the preliminary inquiry continuation date was set because the Defence Counsel was not prepared to deal with the expert evidence, that ½ day was required.

In the end, 1 full day was required. [ 18 ] I reject the suggestion in the materials and argument that it took 3 months to complete the preliminary inquiry because the Crown did not formally add the child pornography charges to the proceedings or give sufficient notice of its intention to do so. The three child pornography charges were added at the conclusion of the preliminary inquiry on the basis that the evidence supported committal on those charges as well as the original four charges. [ 19 ] As previously mentioned, that the Crown was considering adding the charges had been “in the air” since September.

Crown counsel confirmed to Defence Counsel by letter that the Crown intended to add the additional charges a few days prior to the preliminary inquiry. There was, however, no surprise in that advice. Nothing about its timing caused the need to adjourn the preliminary inquiry twice. [ 20 ] I also reject the suggestion that the Crown should be taken as having accepted some portion of the responsibility for the required continuations of the preliminary inquiry since Crown Counsel did not opposed the adjournments and in fact said that she was “absolutely not” opposed to the adjournments.

In my view, this was an instance of courtesy being extended by one counsel to the other when the latter has not been able to properly prepare. In the circumstances, the adjournment was necessary and Crown Counsel properly did not oppose it. This does not change the fact, however, that the need for the adjournment was entirely the responsibility of Defence Counsel. [ 21 ] In my view, most of this 3 month segment of the 31 month delay should be ascribed to the Defence.

But for the fact that Defence Counsel was not prepared to deal with the expert witness on March 17, 2015, and failed to include time required for the qualification voir dire in his estimate of the time required to complete the preliminary inquiry, the delay would have been a week or two at most. [ 22 ] I conclude that 2½ months of this 3 month delay should be assigned to the Defence. d.

Committal (June 16, 2015) to the date when the trial date was set (November 13, 2015) – 5 months [ 23 ] That it took 5 months to get the Queen’s Bench trial date set is remarkable. [ 24 ] The Crown suggests that 2 weeks of this period should be ascribed to the Defence because when Mr. H was committed, the first available Queen’s Bench arraignment day was July 31, 2015, but Defence Counsel was not available that day and asked for August 14, 2015.

However, in my view, it is not likely that this delay resulted in the trial date being set later than it otherwise would have been, since the trial was not set on August 14 or, indeed, until November 13 in any event. [ 25 ] Immediately after committal, Mr. H decided to change counsel. I reject the Crown’s submission that this caused delay. [ 26 ] Original Defence Counsel asked the Crown at the time of the change of counsel, to permit him to forward the disclosure to the new Defence Counsel.

The Crown refused permission because it was necessary, in accordance with normal Crown procedure in cases of this nature, for undertakings concerning the use of the disclosure to be imposed on the new Defence Counsel. [ 27 ] However, it took the Crown several months to organize the transfer of the disclosure from old to new Defence Counsel. The materials indicate that original Defence Counsel was slow to return the disclosure to the Crown so that it could be forwarded to new Defence Counsel.

In my view, it was not reasonable for the Crown to insist on this cumbersome procedure when it had been proposed that original and new Defence Counsel would organize the transfer themselves. The imposition of undertakings on new Defence Counsel was accomplished by a letter from the Crown. This could have been done within a day or two of original Defence Counsel proposing to transfer disclosure.

In my view, the Crown’s unnecessarily cumbersome procedures were the cause of almost all of the delay in effecting the transfer of disclosure. [ 28 ] Another significant portion of this delay resulted from the Crown requiring time to consider the Defence request that the Crown consent to a re-election from judge and jury to judge alone. That time was required to consider this request was the reason given for adjourning the case both from October 2, 2015 to October 30, 2015, and from October 30, 2015 to November 13, 2015.

Why the senior counsel conducting this matter would require more than 10 minutes to make the required decision is something of a mystery. [ 29 ] None of this 5 month delay is attributable to the Defence. e. Date on which trial date was set (November 13, 2015) to anticipated end of trial (November 18, 2016) – 1 year and 1 week. [ 30 ] As noted previously, the last week of this period resulted from a change to the originally set trial dates required to accommodate Defence Counsel. Defence Counsel acknowledges that responsibility for this week should be assigned solely to the Defence.

[ 31 ] Prior to their appearance in Queen’s Bench arraignment court on November 13, 2015, Counsel had “pre-booked” the trial dates with the Queen’s Bench Court Coordinator’s office. There is nothing in the materials to indicate whether or not that was the earliest date upon which Crown, Defence and the Court were available. [ 32 ] I note the difference between Queen’s Bench and Provincial Court records concerning pre-bookings. The latter shows what dates earlier than the date pre-booked the court was available at the time of the pre-booking.

This, as demonstrated in this case, is very useful information. [ 33 ] Only 1 week of this 1 year and 1 week delay is attributable to the Defence.

Defence Delay [ 34 ] In the result, of the 31¼ months between the day the information was sworn and the anticipated last day of trial, a total of 6½ months is delay attributable to the Defence: - 3 months delay between November 27, 2014, when both the Court and Crown were available for the preliminary inquiry, but Defence Counsel was not available, and March 2, 2015 the date set for the preliminary. - 2½ months of the 3 months required to complete the preliminary inquiry. - 1 week delay of the trial dates required to accommodate Defence Counsel. [ 35 ] The delay for which the Defence is not solely responsible is therefore just less than 25 months.

This is less than the 30 months which invokes the Jordan presumption. Disposition of Application [ 36 ] Mr. H’s application was founded on the proposition that the Jordan presumption applies in this case. I have found that it does not apply. Mr. H did not argue that if the Jordan presumption did not apply, the delay was nevertheless unreasonable.

He did not submit or show that: 1) the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) the case took markedly longer than it reasonably should have. [ 37 ] In the circumstances, because the Jordan presumption does not apply, it is not necessary for me to consider the submissions made in relation to the presence of exceptional circumstances or transitional exceptional circumstances in this case. [ 38 ] The application is dismissed. Heard on the 27 th day of October, 2016. Dated at the City of Edmonton, Alberta this 31 st day of October, 2016. B.R.

Burrows J.C.Q.B.A. Appearances: Suvidha Kalra for the Crown Daniel Song and Vincent Rizzuto for the Accused