R v Cabrera, 2016 ABQB 707

Court of Queen ’ s Bench of Alberta Citation: R v Cabrera, 2016 ABQB 707 Date: 20161215 Docket: 141285486Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Franz Cabrera, Joch Pouk and Assmar Shlah Accused _______________________________________________________ Decision of the Honourable Mr. Justice G.H. Poelman on Charter Application for Stay ______________________________________________________ I Introduction [ 1 ] The three accused seek a stay of the charges against them (now guilty verdicts) on the basis that their right to be tried within a reasonable time under

section 11(

b) of the Canadian Charter of Rights and Freedoms was infringed. They were charged in late November and early December 2013, and the jury delivered its verdicts on June 16, 2016. [ 2 ] In R. v. Jordan , 2016 SCC 27 , the Supreme Court of Canada established a new framework for determining whether an accused’s right to be tried within a reasonable time has been infringed. Thus, this application turns on

interpretation and application of the Jordan framework. The special feature of this case, not expressly addressed in Jordan , is that a direct indictment was preferred nearly a year after initial charges were laid. II History of Proceedings [ 3 ] The parties submitted different timelines, neither of which will be reproduced here.

For present purposes, it will suffice to outline key dates and events, turning to more detail as necessary to address specific issues. [ 4 ] It is agreed that the time from which to count total delay is the laying of informations – thus, November 24, 2013 (Cabrera), November 28, 2013 (Pouk) and December 12, 2013 (Shlah). The charges arose from an incident on November 23, 2013. [ 5 ] There were numerous attendances in Provincial Court to address various matters, including ongoing disclosure.

All five accused (including Gervais, who absconded just before trial, and Liao, who was acquitted) first appeared on a new, consolidated information on March 28, 2014. On April 22, 2014, a preliminary inquiry was scheduled for March 16 through April 2, 2015. [ 6 ] At a November 13, 2014 attendance, the Crown confirmed recent correspondence to Defence counsel that a direct indictment would be preferred. The first appearance on the direct indictment was November 14, 2014, in Queen’s Bench.

On December 19, 2014, jury selection was scheduled for April 28, 2016, with the trial to follow on May 2, 2016. [ 7 ] The jury delivered its verdicts on June 16, 2016. At the request of Pouk and Shlah, pre-sentence reports and psychological and psychiatric assessment reports were ordered. They were received between October 13 and November 25, 2016. [ 8 ] In the meantime, on September 16, 2016 the three remaining accused jointly filed a Notice of Charter Application. III The Jordan Framework

[9] The Supreme Court of Canada recognized that its decision in Jordan was a departure from its own precedent, a step not to belightly undertaken (para. 45). Nevertheless, it found compelling reasons to do so because of what it found to be a system toleratingexcessive delays and a culture of complacency towards delay (paras. 4 and 135). It concluded that a change of direction was required,setting presumptive ceilings on the time it should take to bring an accused to trial. [10] The court emphasized the wide-ranging interests intended to be served by

section 11 (

b) of the Charter, guaranteeingaccused’s right “to be tried within a reasonable time.” Accused persons need protection of their interests in liberty, security of the personand a fair trial (para. 20). Delay has adverse impacts on victims of crime, their families and witnesses (paras. 23 and 24). It may play intothe hands of those who are guilty of their charges and use delay for tactical reasons, to the detriment of the public and the system ofjustice as a whole, undermining the goal of deterrence (paras. 21 and 28).

Finally, timely trials are essential to public confidence in theadministration of justice (paras. 22, 25 and 26). [11] The “heart” of the new framework is presumptive ceilings on the total delay from charge to the actual or anticipated end oftrial, beyond which delay is presumptively unreasonable.

The presumptive ceiling is 18 months for cases going to trial in ProvincialCourt and 30 months for cases going to trial in Queen’s Bench or cases going to trial in Provincial Court after a preliminary inquiry(paras. 46 and 49). [12] Applying the framework begins with calculating “total delay” from charge to actual or anticipated end of trial, and thendeducting delay attributable to the Defence to determine net delay (para. 60). [13] Defence delay may be either waiver (express or implied) of periods of delay, or delay caused solely by Defence conduct(paras. 61 to 66). [14] If the net delay (total delay less delay attributable to the Defence) exceeds the applicable ceiling, the delay is presumed to beunreasonable unless the Crown can show exceptional circumstances.

Circumstances will be exceptional only if they were reasonablyunforeseen or reasonably unavoidable, and the Crown could not reasonably remedy the delays once they arose (paras. 69-76). [15] Sometimes particularly complex cases may give rise to exceptional circumstances, although it must be considered whether theCrown, having initiated a complex prosecution, developed and followed a concrete plan to minimize delay (paras. 77 to 79). [16] The court expressed great concern about avoiding a replay of the consequences of R. v.

Askov, (SCC), [1990]2 S.C.R. 1199, 59 C.C.C. (3d) 449, where “tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change inlaw” (para. 92). Thus, it qualified how the new framework would apply to cases currently in the system.

Where the delay alreadyexceeds the presumptive ceiling, the Crown may satisfy a court that the time taken was justified based on the parties’ reasonable relianceon the law as it previously existed, or because the jurisdiction has significant institutional delay problems (paras. 95 to 98). [17] The court chose not to determine whether or how its ceilings of 18 or 30 months should apply to stay applications broughtafter a conviction is entered, or whether additional time should be added to the ceiling in such cases (para. 49, n. 2). R. v.

Rhode, 2016SKQB 330, held that “in calculating the 30-month limit under Jordan, the clock stops at the end of the trial” (para. 15), excluding in thatcase all post-verdict time. IV The Jordan Framework Applied A. Presumptive Ceiling [18] Jordan emphasizes that the heart of its new framework is the presumptive ceiling, against which net delay is to be measured.Unfortunately, this case does not neatly fit into the two alternative ceilings. [19] As noted above, Jordan offers two presumptive ceilings: (

a) for cases tried in Provincial Court, 18 months from charge to endof trial; or (b) “for cases going to trial in the superior court,” 30 months from charge to end of trial; and the 30-month ceiling also applies“to cases going to trial in the provincial court after a preliminary inquiry” (paras. 46 and 49). [20] This case was not tried in Provincial Court. It was tried in Queen’s Bench, but without a preliminary inquiry. The Crownpreferred a direct indictment under

section 577 of the Criminal Code. [21] The Defence argues that the 30-month ceiling for a Queen’s Bench trial does not apply because it assumes a preliminaryinquiry. Jordan does not make that a condition, but the Defence argues it is implicit in the statement that “the 30-month ceiling wouldalso apply to cases going to trial in the provincial court after a preliminary inquiry” (para. 49).

In other words, as I understand the logic ofthe Defence’s argument, the ceiling should be 18 months for a trial in any court if a preliminary inquiry has not been held, or 30 monthsin any court if a preliminary inquiry has been held. [22] But that is not what Jordan says.

It sought to avoid unpredictability, confusion and complexity (paras. 32 to 38) by settingpresumptive ceilings that apply to carefully defined categories of cases, and addressing the “contextual nature of reasonableness” byaccounting “for case-specific factors both above and below the presumptive ceiling” (paras. 5, 58 and 59). [23] In response to the Jordan minority’s criticisms of an approach based on ceilings, the majority emphasized the care taken toestablish the new framework.

Of course, in setting a new framework expressly applicable to a broad range of cases (not just the onebefore it), it would have been aware of the Crown’s discretion to prefer an indictment at any stage of Provincial Court proceedings(section 577). It chose not to create an exception from the 30-month ceiling for cases where a direct indictment occurred beforecompletion of a preliminary inquiry. [24] The problem with creating such an exception would be the broad statutory scope of the Crown’s direct indictment powers, as

to timing and purpose of it being invoked. The courts have declined to review the Crown’s exercise of this discretion, indicatingintervention will occur only if there is an abuse of process: R. v. L.(S.J.), 2009 SCC 14 , [2009] 1 S.C.R. 426, para. 24. [25] Cases where a preliminary inquiry has not been held or completed because of a direct indictment are not amenable to aspecific ceiling other than the 30 months for a superior court trial. A direct indictment under

section 577 could be preferred any timeafter informations are laid until an order to stand trial has been made, or after a preliminary inquiry where an accused has beendischarged. [26] There may be cases where the Defence can show that even though net delay in a case in Queen’s Bench is less than 30months, it is unreasonable because the Crown preferred a direct indictment and avoided the need for a preliminary inquiry.

The Jordanframework allows for the possibility of stays even though net delay is below the presumptive ceiling (paras. 82 to 91). [27] However, this will occur only in clear cases (para. 83), where the Defence establishes that it took meaningful stepsdemonstrating a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have (para.82).

The latter criterion would involve considering, for example, whether the time between initial charges and direct indictment could bejustified by factors such as an ongoing investigation and the need to compile substantial disclosure. [28] The Defence has not undertaken that burden here, relying instead on an 18-month presumptive ceiling, which I conclude doesnot apply. It is unlikely such an onus could be met during Jordan’s transitional phase in any event, but there may be cases in the futurewhere a late direct indictment would enable the Defence to meet the onus. B.

Total Delay [29] For reasons given above, I conclude that the total delay is to be calculated from laying of the initial informations to the jury’sverdicts. Jordan does not include the period after verdict when determining whether the presumptive ceiling has been exceeded. Almostall the time since verdict was necessary for reports requested for the sentencing hearing and this application, both reasonable steps takenat the instance of the Defence. [30] Thus, the total delays here are:

a) November 24, 2013 to June 16, 2016 (Cabrera): 30 months + 24 days

b) November 28, 2013 to June 16, 2016 (Pouk): 30 months + 20 days

c) December 12, 2013 to June 16, 2016 (Shlah): 30 months + 5 days Calculations include the start and end dates. C. Defence Delay [31] The Crown argues that two periods of time, which it says are attributable to the Defence, should be deducted from total delayto arrive at net delay – the period to be compared to the presumptive ceiling. [32] The first contested period arises from an appearance in Provincial Court on March 28, 2014, the first appearance on a new,consolidated information.

Process was transferred from previous informations on which each accused had been charged individually. [33] After addressing the transfer of process, the court inquired “what day?” to which one of the Defence counsel indicated “April 22nd, please, Sir.” The court inquired whether that was “Okay with everybody,” to which an agent for Mr. Pouk’s counsel responded asfollows: And, Sir, just to be clear on behalf of Mr. Chow, who’s counsel for Pouk, we are prepared to set a trial date. I understand that Mr.

Wolchwants an adjournment of this matter and we take no issue with that, but I just want it on the record that defence for Pouk is prepared toset a date at this time. (Presumably in referring to “trial date” counsel meant a date for the preliminary inquiry.) [34] Mr.

Cabrera’s counsel indicated that “And with respect to that adjournment, Sir, part of the idea is that there is new disclosureavailable and by reviewing it, we may be able to pare down the witnesses and have a prelim at an earlier date.” The record does notshow that the Crown was applying for an earlier preliminary inquiry date, nor did the Crown express any objections or questions aboutthe adjournment. The next appearance in Provincial Court was April 22, when the preliminary inquiry was scheduled for March 16through April 2, 2015. [35] The Crown argues that because Mr.

Cabrera’s counsel never wrote to the Crown about narrowing the issues, the five-weekadjournment (presumably, the time between March 28 and April 22) should be counted as Defence delay. In my view, this is not the typeof conduct Jordan considers defence delay, but more likely falls into the category of “defence actions legitimately taken to respond to thecharges” (at para. 65).

More importantly, because the Crown preferred a direct indictment on November 14, 2014, well before March 16,2015 (the scheduled commencement of the preliminary inquiry), this brief adjournment had no effect on the trial date. [36] The second period of delay the Crown attributes to the Defence arises from the first appearance in Queen’s Bench (atCriminal Appearance Court) on November 14, 2014. All Defence counsel suggested that the case should be adjourned for a few weeks,based on new disclosure from the Crown said to be relatively voluminous.

Further, Defence counsel suggested the adjournment could beproductive, as it would allow review of the new disclosure and coordination among counsel and the court. The Crown’s position was

“the Crown’s case will take six weeks, . . . we will be booking probably over a year now ahead. Is that really necessary to just adjourn ithere for a short period of time?” [37] The court ruled that, while appreciating the Crown’s point, there was some merit in at least looking at the materials as thatmight enable a better estimate for required trial time, and in the meantime dates in 2016 would likely not disappear. [38] The next appearance was on December 19, 2014, when the trial was scheduled to commence February 2016.

However, laterthat day it was discovered that lead counsel for the Crown had another matter booked for the same time, and thus the matter had to berescheduled for the May through June 2016 dates. The Crown argues that the delay between the February and May 2016 dates, of aboutthree and a half months, should be attributed to the Defence. [39] Once again, in my view this cannot be considered the type of unreasonable Defence conduct that leads to a deduction in theperiod of total delay.

That is particularly so given the court’s ruling on December 19, 2014, and the fact that part of the reason for loss ofthe February 2016 date was a conflict in the Crown’s own calendar. [40] Thus, I find no delay attributable to the Defence. In this case, the net delay is the same as total delay. D.

Transitional Exception [41] I have found that the net delay in this case is 30 months and 24 days, for the accused charged on the earliest information.Because the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable and the Crown bears the burden ofjustifying the delay. [42] Even though this case was “currently in the system” when Jordan was decided, the presumptive ceiling still applies, but atransitional exceptional circumstance may arise (paras. 95 to 103). Here, not only was the case in the system, but a verdict had beenrendered before the Jordan decision was released.

As held in R. v. Porter, 2016 ONSC 7173, the new framework will not apply strictlyto traditional cases, because “the analysis must be contextually sensitive to the law and the legal culture that exists at the relevant time”(para. 7). [43] For an exception to apply, the Crown must satisfy the court that the net time is justified based on reasonable reliance on thelaw as it previously existed.

Relevant factors in this “contextual assessment” include how the previous framework under Askov and R. v.Morin, (SCC), [1992] 1 S.C.R. 771, would have been applied, and the time the parties and the system had to adapt to theJordan framework. Under the Morin framework, seriousness of the offence and limits on institutional resources are relevant factors to beassessed. [44] In my opinion, the transitional exception clearly applies to this case. There was no time to adapt to Jordan, because the periodmeasured by the ceiling (charge to verdict) had already expired when the decision came out.

Further, “the seriousness of the offenceoften played a decisive role” under the previous framework, and the offences tried in this case were very serious. Finally, Jordanrecognized that “the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significantinstitutional delay problems” (para. 97). This case was at least of moderate complexity considering the number of parties charged and theamount of evidence called, and Alberta is notorious as suffering from inadequate judicial resources for its population: R. v. Regan, 2016ABQB 561, para. 99; R. v.

Lamb, 2016 ABQB 489, paras. 113 to 16 (although institutional resources on their own do not justify atransitional exception). [45] Having concluded that the transitional exception applies, there is no need to consider whether other exceptional circumstanceswould justify exceeding the presumptive ceiling. V Conclusion [46] I have concluded that the delay in this case should be measured against Jordan’s presumptive ceiling of 30 months for trialsconducted in a superior court. The delay exceeded that ceiling, albeit by less than one month.

Nevertheless, the Crown has established atransitional exceptional circumstance, based on reasonable reliance on prior authorities and significant institutional delay. [47] I therefore dismiss the applications of all accused for a stay of proceedings under

section 11 (

b) of the Charter. Heard on the 28th day of November, 2016. Dated at the City of Calgary, Alberta this 15th day of December, 2016.

G.H. Poelman J.C.Q.B.A. Appearances: Marlo MacGregor, Ken McCaffrey and Samina Dhalla, for the Crown Balfour Der, Q.C. for the Accused, Assmar Shlah Gavin Wolch, for the Accused, Franz Cabrera Ramey Katrib, for the Accused, Joch Pouk David Chow, for the Accused, Joch Pouk