R v Ryland, 2017 ABQB 799

Court of Queen’s Bench of Alberta Citation: R v Ryland, 2017 ABQB 799 Date: 20171221 Docket: 141196584S1 Registry: Fort McMurray Between: Her Majesty the Queen Respondent - and - Mark Ryland Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Mark Ryland appeals his conviction for assault, uttering threats, and mischief arising out of an incident on September 16, 2014. He argues that the trial judge erred: 1) in ruling that Mr. Ryland was not entitled to a judicial stay of proceedings as a result of an infringement of his

section 11(

b) rights to be tried in a reasonable time; and 2) by ruling that Mr. Ryland was not entitled to advance an argument that his

section 9 rights were infringed by reason of unlawful detention.

Background [ 2 ] Mr. Ryland was arrested after an incident with a taxi driver on September 16, 2014. The taxi driver testified that Mr. Ryland jumped in his taxi while he was working in the East Village in Fort McMurray. He asked Mr. Ryland where he was going, and Mr. Ryland told him “down the hill.” Mr.Ryland was talking on his cell phone during much of the journey. When they got to the bottom of the hill, Mr. Ryland told him to go up the hill to Thickwood. [ 3 ] As they got close to Thickwood, Mr. Ryland suddenly asked him “are you Muslim?” to which the driver replied “yes.” Mr.

Ryland then told the driver he wanted to kill him and that he wasn’t supposed to be here. The driver says he told Mr. Ryland to cool down, and that he would take him where he wanted to go. The driver believed that Mr. Ryland was drunk. Mr. Ryland then started damaging the cab, breaking the GPS system and his meter, and then he punched the driver in the ribs and on his face. [ 4 ] The driver stopped the cab, got his key and his cell phone and started to call the RCMP. Mr. Ryland followed him. Then Mr. Ryland tried to get a ride with someone driving a white truck, and punched the truck. Eventually, Mr.

Ryland returned to the cab, urinated on it and then began to throw the driver’s things out of the cab. The RCMP showed up, and the driver spent some 10 or 15 minutes with them. [ 5 ] RCMP officers testified as to what they observed when they arrived at the location where the cab stopped. When they arrived, one of the officers said he saw Mr. Ryland chasing the driver around. Mr. Ryland was in what the officer described as “fighting stance.” Another officer testified that when she arrived, Mr. Ryland was calmly sitting in the taxi. Mr.

Ryland was arrested and put into a police vehicle and eventually taken to the RCMP station in Fort McMurray. [ 6 ] Mr. Ryland testified. He said that he had been drinking in a bar and decided he should not drive home. He called a taxi to drive him home. Shortly after he got in the cab, he fell asleep. When he woke up, he believed that the taxi driver was not taking him towards his house, and realized the taxi driver was grabbing for his wallet. He and the driver got into a scuffle. That led to the driver stopping in the middle of the street, where he and the driver had a confrontation.

He was aware that the driver had called the RCMP, and at some stage Mr. Ryland got back into the taxi and waited in the back of the taxi until the police arrived. [ 7 ] Mr. Ryland denied calling the driver any racist names or breaking anything in the cab. [ 8 ] After argument, the trial judge convicted Mr. Ryland on all three counts. [ 9 ] The basis for the appeal is based on alleged Charter breaches. Mr. Ryland argues that the trial time exceeded the framework set out in R v Jordan , 2016 SCC 27 . The information was sworn on October 17, 2014.

The trial was scheduled to be heard on February 8, 2016. [ 10 ] Shortly before the trial, Mr. Ryland filed a Charter notice alleging a

section 7 breach because of the Crown’s failure to produce cell block video from the time Mr. Ryland was detained there, as well as video from the police vehicle. He also argued that

section 9 had been breached. [ 11 ] On February 8, 2016 the trial commenced. There was extensive discussion about the Charter notice. The Crown objected to the notice as no case law had been provided. The Crown also expressed concern about the lack of detail in the Charter notice such that it was unable to understand the arguments being advanced. [ 12 ] Mr. Yoo, counsel for Mr. Ryland, advised that the

section 9 argument was based on the fact that Mr. Ryland had been detained too long. The Crown offered to provide Mr. Yoo with a guard sheet from the night Mr. Ryland was arrested and detained, which could have been done shortly. Since Mr. Yoo needed to provide case names supporting his arguments for the

section 9 application, the Charter arguments were not heard at that time, and Mr. Yoo was directed to file an amended Charter notice. It was obvious that the trial would not be completed that day, but to avoid further inconvenience to the cab driver, he testified and was cross-examined. The trial was then adjourned so the guard sheet could be produced and Mr. Yoo could file an amended Charter notice. [ 13 ] The guard sheet was produced on March 16, 2016. The trial was set to continue on November 21, 2016. Prior to the trial continuing on November 21, Mr. Ryland filed a Jordan application, as well as a

section 9 Charter application alleging that Mr. Ryland had been arbitrarily detained. The Crown filed an affidavit from Elizabeth Sullivan, Office Manager for the Crown’s office in Fort McMurray. Her affidavit responded specifically to the Jordan application and set out the chronology of the matter. [ 14 ] On November 21, 2016 the trial judge dismissed the Jordan application and ruled that the

section 9 application should not proceed because of deficiencies in the Charter notice. The trial judge refused to give Mr. Ryland an adjournment to correct the Charter notice. [ 15 ] The

section 7 argument relating to the police car video and cell block video was heard, and was dismissed at the conclusion of the voir dire. [ 16 ] The trial judge reserved decision and ultimately convicted Mr. Ryland of all three counts on December 1, 2016. Mr. Ryland was sentenced on April 26, 2017. Jordan application [ 17 ] Mr. Ryland notes that the 18-month presumptive ceiling for Provincial Court trials expired in April 2016, after the trial had commenced in February, but before it recommenced in November 2016.

From the date the information was laid in October 2014 until the completion of the trial in November 2016, 25 months had elapsed. The total time from information to sentence was in excess of 30 months.

[18] Mr. Yoo says that the defence was responsible for two months of that time as the trial could have been heard in September2016, but the defence requested an additional two months due to “scheduling issues.” [19] Mr. Yoo argues that the delay from February 8, 2016 until the trial recommenced on November 21, 2016 should be attributedto the Crown, because it resulted from the trial judge’s error in requiring that he file an amended Charter notice. Accordingly, Mr. Yoosubmits that the total time attributable to the Crown is 23 months, which far exceeds the Jordan ceiling.

He submits that the chargeshere were not particularly serious, and there were no factors other than the “culture of complacency” that could justify the delay. [20] The Crown argues that the delay between February 8, 2016 and November 21, 2016 is entirely on the defence and notes thaton February 8, during the discussion about filing an amended Charter notice, Mr. Yoo said “this adjournment would totally beacknowledged on our defence.” Removing that period from Mr. Yoo’s 23-month argument would bring the trial time down to 12 ½months, which is within the Jordan timeframe.

Even adding the time from the completion of evidence and argument to sentencing (5 ¼months) still has the time period less than 18 months. [21] Mr. Yoo argues that his statement that the adjournment would be on the defence was taken out of context by the trial judge asthe adjournment was so that the Crown could produce the guard sheet it had not previously produced. [22] In response to that argument, the Crown says that the trial judge’s attribution of the February to November delay to thedefence was a finding of fact and is subject to the palpable and overriding error standard of review.

Because of the trial judge’sfamiliarity with the entire process and the discussions and circumstances leading to the February adjournment, she should be given ahigh level of deference on the point, and it has not been demonstrated to be “clearly wrong, unsupported by the evidence or otherwiseunreasonable.” [23] Additionally, the Crown argues that in the trial judge’s reasons, she noted that the adjournment was to perfect Mr. Ryland’sCharter notice, which had been found by her to be deficient.

The trial judge’s ruling was that the delay from the February adjournmentuntil the November 21, 2016 continuation of the trial was delay attributable to the Defendant’s conduct, and had been waived. [24] Mr. Yoo submits that the delay is not attributable to Mr. Ryland such that the

section 11(

b) breach has been made out.Accordingly, a stay of proceedings is the appropriate remedy

Section 9 [25] Mr. Yoo argues that the trial judge erred in rejecting the

section 9 notice, as he had complied with the Constitutional NoticeRegulation. He argues that his notice stated what right was infringed (section 9), the date the argument was to be made (November 21,2016), the relief sought (a judicial stay), and a concise statement of the constitutional principles to be argued (the detainment was ingross violation of the Accused’s rights to be free from arbitrary detainment or imprisonment). [26] Mr. Yoo argues that the requirements of Dwernychuk have been replaced by the Constitutional Notice Regulation.

He arguesthat once a notice complying with the Regulation has been provided, the trial judge in Provincial Court is required to hear the argument [27] Mr. Yoo also argues that the original notice was expanded in court on February 8, 2016 when he stated that the

section 9breach “was because there was no need for the accused to be held in cells overnight.” [28] Since Mr. Yoo argues that he complied with the Constitutional Notice Regulation, the trial judge erred by rejecting hisCharter notice and not dealing with those arguments. Alternatively, she erred by not granting an adjournment so that a new Charternotice could be filed. The appropriate remedy for these errors is a direction for a new trial. [29] The Crown argues that there was no error by the trial judge in striking the

section 9 argument. The trial judge found that thesection 9 Charter notice was deficient. In doing so she followed R v Dwernychuk, 1992 ABCA 316, which was applied in R vMousseau, 2002 ABQB 50. [30] In response to Mr. Yoo’s argument that the Constitutional Notice Regulation replaced Dwernychuk and cases following it, theCrown argues that the Regulation is only the starting point for Charter notice requirements. The Crown relies on R v Bull, 2010 ABPC68, with respect to the history and purpose of the Regulation. Case law [31] Mr. Ryland referred to the following cases:

a) R v Jordan, 2016 SCC 27;

b) R v Cody, 2017 SCC 31;

c) R v Moussean, 2002 ABQB 150;

d) R v Croft, 2012 ABQB 604;

e) R v RJH, 2000 ABCA 111 , 2000ABCA 111;

f) R v McKelvey, 2008 ABQB 466;

g) R v Sparrow, 2006 ABQB 284;

h) R v Lovenian, (ON CA); and

i) Constitutional Notice Regulation. [32] The Crown relied on the following cases:

a) R v Warring, 2017 ABCA 128;

b) R v Callahan, 2008 ABQB 324;

c) R v Dwernychuk, 1992 ABCA 316; and

d) R v Bull, 2010 ABPC 68. Analysis [33] Simply put, Mr. Ryland complains on this appeal that his Charter rights were breached in two respects; firstly, his section11(

b) right to a speedy trial was breached because from charge to conviction was 25 months, of which the defence was only responsiblefor two months. That position relies mainly on his argument that the trial judge erred in requiring him to amend his Charter notice. Mr.Ryland says that the trial judge and also erred by not considering the effect of the Crown’s failure to produce the cell block videos fromthe cell in which Mr. Ryland was detained in response to his initial request for disclosure. The guard sheet for the night Mr.

Ryland wasarrested was not produced on the first day of trial and caused the trial to be adjourned. [34] Although Mr. Ryland does not appeal from the trial judge’s dismissal of his

section 7 application at trial, he argues that muchof the delay from February 8 to November 21 resulted from non-disclosure by the Crown. [35] Mr. Yoo further argues that the trial judge erred by tying his acknowledgment of responsibility for delay to an allegedlydeficient Charter notice and not to disclosure issues. [36] According to Mr. Yoo, all of the time between the initial trial date and the recommencement date (February 8 to November21, 2016) should be attributed to the Crown. That puts the delay past the presumptive 18-month limit in Jordan. [37] Secondly, Mr. Yoo argues that he should have been allowed to argue that Mr. Ryland’s

section 9 rights had been violatedbecause he was detained overnight in the cells following his arrest, and his detention was not justified because he was not so impaired asto require detention after his arrest. [38] These arguments tie together, because the relevance of the cell block videos and the guard sheet is that they may haveprovided some evidence of Mr. Ryland’s level of intoxication at the time.

The unavailability of this evidence potentially limited Mr.Ryland’s right to make full answer and defence. [39] The arguments are further interconnected because the nine-and-a-half-month delay in the trial resulted at least partly, if notfully, from the trial judge’s rejection of the Charter notices that had been filed. Much of this appeal turns on the requirements of Charternotices in Provincial Court. Charter Notices [40] R v Bull contains an excellent analysis of the history and purpose of the Constitutional Notice Regulation. I need not repeat ithere.

For trial fairness reasons, recognizing that the accused bears the onus of proving a Charter violation, cases such as R vDwernychuk, (1992) 1992 ABCA 316 , 135 AR 31 (ABCA), leave to SCC denied, [1993] 2 SCR vii, confirmed therequirement of pre-trial notice for Charter applications by the defence.

As noted by the Court of Appeal at paragraph 16: There is an element of unfairness to the Crown if the court allows the defence to lie in ambush and thus requires the Crown to anticipateevery possible infringement. [41] Dwernychuk recognized that the Provincial Court of Alberta was free to set its own practice on the point of notice atparagraph 21. [42] Some years later, the Province enacted the Constitutional Notice Regulation, AR 102/99. Compliance with the written noticerequirement is a precondition to seeking a

section 24 remedy in Provincial Court. [43]

Section 4 describes the contents of the notice:

(4) The notice must state (

a) the law in question, the right or freedom alleged to be infringed or denied or the aboriginal or treaty right to be determined, as thecase may be, (

b) the day and place on which the application is to be argued, (

c) the relief sought, and

(

d) the grounds to be argued, including a concise statement of the constitutional principles to be argued and a reference to anystatutory provision or rule on which reliance will be placed. [44]

Section 5 provides:

(5) If a notice under

section 24 of the Judicature Act or a notice under this

section is given, the proceeding is to be heard by ajudge of the Provincial Court. [45] In Bull, Rosborough PCJ also commented on granting adjournments in the face of non-compliance with the Regulation. Heprovides a list of considerations for granting adjournments in such situations at paragraph 59: [59] The following, non-exhaustive list of considerations will apply in this court when requests are made to adjourn Charter, s.24applications because notice does not comply with the law: (

a) each adjournment request must be examined on its individual merits, with the court being required to exercise its discretion togrant or deny an adjournment judicially; (

b) the usual practice of the court will be to refuse adjournment applications to enable belated compliance with the ConstitutionalNotice Regulation or common law notice requirements; (

c) it will be a rare case which is adjourned where no explanation is given for a failure to give proper notice; (

d) where a reason is given for failing to give proper notice, that reason must be considered in the context of the principles of naturaljustice and the systemic demands of orderly trial processes; (

e) where the reason for failing to give proper notice is because the alleged Charter violation could not have been foreseen by theexercise of due diligence, an adjournment will likely be granted. Counsel will be required to clearly demonstrate the unforeseeability of apotential Charter, s.24 application; (

f) where the reason for failing to give proper notice is to delay proceedings or for ‘tactical reasons’ (eg. to compromise therespondent’s ability to make full answer and defence) an adjournment will likely be denied; (

g) where the reason for failing to give proper notice is neglect or lack of due diligence by the applicant, an adjournment will likelybe denied. The giving of notice is an elementary step in the conduct of a criminal case. Early and full disclosure of the case for theprosecution facilitates immediate notice being given. Failure to give notice because of ineffective assistance from trial counsel trial is arecognized ground of appellate review. Fresh evidence or legal argument relating to a Charter, s.24 application can be considered onappeal in order to determine whether the failure to hear a Charter, s.24 application merits appellate relief; (

h) the position of and potential prejudice to the respondent must be taken into account. Even in circumstances where the respondentconsents to an adjournment, however, the court may elect not to grant the adjournment. As has already been noted, both the respondentand the court require notice of Charter, s.24 applications; (

i) the seriousness of the charge(s); (

j) the amount of time available during which notice could have been given; (

k) steps taken by the applicant to avoid prejudice to the respondent and court; (

l) steps taken to expedite the scheduling and hearing of the Charter, s.24 application on the next occasion; (

m) the viability of the Charter, s.24 application. [46] In R v Leitch, 2010 ABPC 208, Wenden PCJ commented on the decision in Bull at paragraph 69: [69] The issue is not so much the filing of the Notice. Rather, it is the adequacy of the notice; that is, the amount of detail containedin the Notice and whether or not there is enough detail to allow the Court and the Crown to prepare in the manner suggested inDwernychuk. [70] Inadequate Charter notice is becoming more and more common, at least in Edmonton and the surrounding areas.

The frustrationcaused by such notices is becoming the subject of judicial commentary; [See R. v. Mousseau ,2002 ABQB 150 , R. v. Baker,2004 ABPC 218 , R. v. Bull, 2010 ABPC 68 , R. v. Wiebe, 2007 ABPC 47 , R. v. Callahan, 2008 ABQB 324, R. v. Lansdell, 2009 ABPC 355 , R. v. A.K., 2005 ABCA 166 , R. v. Blom, 61 O.R. (3d) 510, to name but afew]. [47] At paragraph 74, Wenden PCJ noted: [74] There has been a lot of judicial commentary about notice and the amount of detail and information that ought to be containedtherein. It has been expressed in various ways.

I have selected two cases that demonstrate how individualized is a judge’s approach to‘adequate notice’. This, in my view, is but a manifestation of the permission given in Dwernychuk that “the Provincial Court of Albertais free to set its own practice on this point” [para 27].

Given that the judge’s constitutional task is to “have regard to all of thecircumstances” when adjudicating on an application, it is incumbent upon him/her to be satisfied that all of the circumstances are indeedavailable, bearing in mind the admonition in para 14 of Dwernychuk. [48] Judge Wenden also noted the power of the trial judge to refuse to hear a Charter motion in the face of inadequate notice:

[84] The courts have long recognized that a Charter voir dire need not be held if counsel cannot state with reasonable particularity thereasons for having a voir dire. Having said that, given the importance of an application to have evidence excluded under section 24(2) itought not be denied lightly. In R. v.

Loveman (1992), (ON CA), 71 C.C.C. (3d) 123 (Ont.C.A.) (“Loveman”),Doherty J.A. stated: ... a trial judge may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side.This must be so even when the motion involves an application to exclude evidence pursuant to s. 24(2) of the Charter. Clearly, where aCharter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation.

There will, however, becircumstances where no less severe order will prevent unfairness and maintain the integrity of the process. [49] It should be noted that Loveman was one of the cases relied on by the Court of Appeal in Dwernychuk. [50] In my view, Wenden PCJ’s discussion about “adequate notice” is particularly appropriate. The Constitutional NoticeRegulation requires that certain information be provided. A trial judge’s function is to determine whether or not the notice complies withthe Regulation. To do that, he or she must determine if the information provided is sufficient to comply.

That is the application of astandard of law to a set of facts. Under Housen v Nikolaisen, 2002 SCC 33, that is a question of mixed fact and law, and is reviewed onappeal for palpable and overriding error, unless there is an extricable question of law. [51] Here, there is no question of law involved. The trial judge determined that the Charter notice provided in advance of theFebruary 2016 trial was inadequate. She adjourned the trial so that a proper notice could be given.

The Charter notice filed January 25,2016 said: TAKE NOTICE that Counsel for the Accused will be making an application before the Honorable Presiding Provincial Court Judge atthe Trial of this matter on the 8th day of February, 2016 at 9:30 in the forenoon, or as soon thereafter as counsel may be heard at theProvincial Courthouse of Fort McMurray for the following Orders that: 1. The detainment of the Accused was in gross violation of the Accused’s rights to free from arbitrary detainment or imprisonmentas guaranteed under

section 9 of the Charter of Rights and Freedoms. Therefore all evidence taken by the RCMP subsequent to the arrestshould be excluded from the trial. 2. The video in the police station has not been disclosed in a timely manner to the Accused thereby breaching the Accused’s rightunder

Section 7 of the Charter of Rights and Freedoms. Specifically, the fo1lowing disclosure but has not been provided: a. The video in the police vehicle. The said disclosure has not been disclosed in a timely manner to the Accused, thereby breaching the Accused’s right under

Section 7 ofthe Charter of Rights and Freedoms to make full answer and defence. 3. The violation or infringement of the Accused’s constitutional rights and freedoms under Sections 7 and 11 of the Charter ofRights and Freedoms entitle the Accused to a stay of proceedings or alternatively a costs award. AND FURTHER TAKE NOTICE that in support of this application the Accused will be referring to and relying on the following legalauthorities: 1. R. v. Stinchcombe, (SCC), [1991]3 S.C.R. 326; 2. R. v. Sharma, 2014 ABPC 131; 3. Other case law as relied upon by the Defence on the day of trial.

AND FURTHER TAKE NOTICE that this Notice refers to and relies on the disclosure received and reviewed heretofore; andfurthermore, take Notice that the Accused expressly reserves the right to raise further or other Charter arguments or Motions as may ariseduring the course of the Trial of this matter. [52] At the beginning of the trial, when the Charter notice was being discussed, the trial judge asked: THE COURT: -- like -- like, what is the problem? What gives rise to this breach? MR. YOO: Okay. So -- THE COURT: And how is the video -- MR. YOO: -- it -- THE COURT: -- helpful to it?

Like, there’s no particulars here. Page 4, lines 14-18: THE COURT: -- where I’m going, so... MR. YOO: The

Section 9 breaches are arbitrary detention.

THE COURT: Right. So is it, like, he was -- MR. YOO: It -- he was - THE COURT: -- held too long or -- MR. YOO: No, he was detained -- our allegation is he was detained for -- after he was charged, he was let out on a promise toappear. But there was no reason why he was kept overnight. And the reason why we’re seeking the -- the video is because he was not adanger to society. There was no reason for him to be detained overnight. [53] The trial judge continued: THE COURT: Well, why -- why wasn’t that line of cases cited -- MR.

YOO: It -- THE COURT: -- and the particulars given to the Crown in the Charter notice so that they could address this and be ready to respond to ittoday? I mean, it is an issue, right?

There is all – ... [54] Later, the trial judge says “...this is the type of stuff that’s supposed to be in the Charter notice” (page 6, lines 40-41). [55] Ultimately, the trial judge stated: ... what I’m inclined to do right now is to direct that an amended Charter notice be filed with full particulars and the Crown be given anopportunity to respond to that, and in the meantime we call this witness’s evidence (the complainant) in a voir dire. And it can just beruled inadmissible if I’m going to stay the charges anyway--” (page 13, line 39 to page 14, line 2). [56] After some further discussion, Mr.

Yoo stated “-- this adjournment would totally be acknowledged on our defence.” [57] The voir dire then proceeded. The complainant’s evidence was taken, following which the trial was adjourned to February 10for setting of a continuation date. It was ultimately adjourned to November 21, 2016, although at a docket court appearance on July 6,2016, the trial judge ordered Mr. Yoo to have an amended Charter notice filed by August 30. The directed Charter notice was not fileduntil November 2. [58] The second Charter notice contained nothing further with respect to the alleged

section 9 breach, and added a new section11(

b) application, based on Jordan. By the time the trial continuation date arrived, the presumptive 18-month period had passed, makingthe delay from February 8 to November 21, 2016 critical in the Jordan analysis. [59] When the trial resumed on November 21, the trial judge struck the Charter notice as it related to

section 9 breach allegations.Cleary, PCJ concluded that the Charter notice as it related to

section 9 was “wholly insufficient because it did not contain particulars orrelevant authorities such that the Crown or Court could evaluate what was being argued” (page 55, lines 25-39). [60] The trial judge then proceeded to deal with the

section 11(

b) portion of the Notice. That application was dismissed becausethe trial judge found that Mr. Ryland had waived any delay from February 8 to November 21. The remaining evidence was heard. OnDecember 1, 2016, the trial judge gave her reasons for decision, and convicted Mr. Ryland on all counts in the information. [61] In my view, it was not unreasonable for the trial judge to strike the Charter notice at that stage. She had concluded inFebruary that the existing Charter notice was insufficient to give effective notice of the

section 9 Charter application to the Crown andthe Court. She adjourned the trial so a new Charter notice could be prepared and filed. The new Charter notice was not filed untilNovember 2, and made no change to the notice the trial judge had earlier ruled to be deficient and requiring amendment. That positionwas reinforced in July, when Mr. Yoo was directed to file an amended Charter notice by August 30. Nothing turns on his failure to file anotice within that time. I can take judicial notice of the difficulties everyone in Fort McMurray faced at that time because of thedevastating fire earlier that spring.

The late filing of the notice was not a factor in the trial judge’s decision. [62] The legal issue relating to this is whether the Charter notice was indeed defective or inadequate. Before dealing with thestandard of review on such an issue, I will deal with that argument on its merits. [63] Mr. Yoo argues that Dwernychuk was essentially replaced, or made redundant, by the Constitutional Notice Regulation. Hecites no authority for that proposition. He references R v Regan, 2016 ABQB 561.

That case considered the effect of defence counsel notcomplying with the Court of Queen’s Bench Criminal Proceedings Rules, which prescribed time limits for filing pre-trial motions.

HillierJ dealt with the Crown argument that non-compliance should result in the application not being considered at paragraphs 7 and 8: [7] In all events, I reject Crown’s argument that non-compliance with the Rule ought to exclude the Court’s consideration of theapplication entirely: R v Warring, 2016 ABQB 236 , [2016] AJ No 422 at para 90, or that the Applicant has waived his rightsby breach of the time requirement: R v Brouillette, 2016 ABQB 214 , [2016] AJ No 924 at para 31. [8] However, in the circumstances here I have decided that non-compliance with the Rules in the late filing of this matter is a factorwhich the Court is entitled to weigh as part of the overall circumstances. [64] This decision confirms the jurisdiction of a trial judge to consider non-compliance with rules of practice and procedure in thecontext of deciding whether or not to allow a matter to proceed.

It says nothing about Dwernychuk, or whether Dwernychuk remains arelevant consideration when a trial judge considers the adequacy of a Charter notice.

[65] If there is any doubt on the matter, Dwernychuk remains a very relevant consideration, whether in the Court of Queen’sBench or in the Provincial Court. All that the Constitutional Notice Regulation does is prescribe a mandatory minimum form of noticerequired to be given to enable a Provincial Court Judge to deal with a Charter application. Within the Regulation itself, 4(

d) makes itclear that the notice must include “(

d) the grounds to be argued, including a concise statement of the constitutional principles to beargued and a reference to any statutory provision or rule on which reliance will be placed.” [66] I certainly agree with the statements of Wenden PCJ at paragraph 84 of Leitch, quoted at paragraph 48 above. [67] PM Clark, J considered Dwernychuk in the context of the Constitutional Notice Regulation in R v Callahan, 2008 ABQB324.

The facts there are similar to the case here, as reflected by the decision: [34] The trial judge turned his mind to the Constitutional Notice Regulation, and to the principles enunciated in Dwernychuk, therebyapplying the correct legal principles. The trial judge determined that the notice was insufficient and did not reflect the principles set outin Dwernychuk. He determined that the notice was overly vague, and did not give the Crown or Court sufficient information so as toallow to meet the Charter arguments raised. Through his review of two Alberta provincial court decisions, R. v.

Baker, 2004 ABPC 218 and R. v. Coles, 2005 ABPC 20 , the trial judge concluded that a Charter notice should contain the argument andevidence to be brought forward on the application in a

summary form. [35] With regards to the appropriate remedy, although the trial judge turned his mind to the possibility of an adjournment he rejectedthis remedy on two grounds. First, he noted that a 1 ½ year delay had already occurred, and second, prior notice of the deficiencies inthe Charter notice had been provided to the Appellant by the Crown. (Transcript, Page 47, Lines 8-14) [68] PM Clark, J concluded at paragraphs 36 and 39 as follows: [36] Upon review of the trial judge’s decision on this application I find no error in law.

The trial judge applied the correct legal teststo the question of the adequacy of the notice, and considered the relevant case law. There is also no palpable and overriding error inpresent in the trial judge’s conclusion that, in this case, the notice provided was inadequate. A reading of the provision rejected by thetrial judge indicates support for his conclusion. [39] The prejudice to the Crown and the adequacy of the notice are questions of fact. There was no palpable and overriding error inthe trial judge’s conclusion that the notice was inadequate.

Furthermore, the remedy chosen by the trial judge (to decline to hear theissue) was an appropriate exercise of his discretion in the circumstances. [69] I agree with PM Clark’s decision and reasoning. [70] Compliance with the Regulation and substantive sufficiency need to be determined by the trial judge. When the trial judgefinds a notice to be deficient, the consequences of that need to be addressed. Sometimes, deficiencies might be waived if no prejudice tothe Crown results or for other valid reasons. In other cases, fairness requires that the notice be struck and the matter adjourned.

In othercases, the notice may be struck and the trial completed without reference to the Charter application. Those decisions are for thedetermination of the trial judge, acting judicially. The trial judge’s determination should certainly include consideration of therequirements of Dwernychuk, and its objective of ensuring that the Crown has an opportunity to respond appropriately and in a timelyway to avoid adjournments and the waste of judicial resources. [71] Here, the trial judge was concerned that the Charter notice did not provide any of the case law dealing with

section 9, andthere were still no details as to what was alleged to have been done or not done to put

section 9 into play. [72] Regardless of the standard of review, the trial judge made no error in concluding that the Charter notice was deficient. UntilMr. Yoo provided a brief explanation, neither the judge nor the Crown had any idea (at least from the record) as to what the

section 9concern was. The explanation was not particularly fulsome, and no case law was offered up. It was well within the trial judge’sdiscretion to direct a further and better Charter notice be provided, and to adjourn the trial until that was done. While she could havechosen to proceed over the Crown’s objection, she did not do that. Adjourning the matter was certainly not an error. [73] Even if viewed on a correctness standard (which is not the correct standard here) the trial judge’s treatment of the Charternotice on February 9 meets that standard.

When viewed in the context of the correct standard of review (palpable and overriding error),the challenge does not even come close. [74] It was also not unreasonable for the trial judge to reject the second Charter notice as it related to

section 9. She ruled theidentical wording was inadequate in February. That ruling was after Mr. Yoo had provided some explanation for the basis of theapplication, but his explanation could at best be described as a bare bones description, with no authorities cited.

When faced with anunchanged notice, even after an amended notice had been specifically ordered in July, it was not unreasonable for the trial judge to rejectthe second notice. [75] The trial judge could have adjourned the trial again, and again directed that a further and better Charter notice be provided.But she was already dealing with a Jordan application, and the trial was by then at the 25-month mark. She chose to strike the Charternotice, and proceed to complete the trial without consideration of

section 9 issues. [76] Adjournments also involve the exercise of discretion on the part of a trial judge. I cannot improve on the relevantconsiderations as stated by Rosborough PCJ in Bull, quoted above. An analysis of those factors (although not expressly done by the trialjudge) strongly supports the refusal of the trial judge to grant an adjournment. [77] The standard of review for adjournment rulings is deferential, and is on the basis of palpable and overriding error. There is nosuch error here. [78] At the root of the

section 9 argument is the level of Mr. Ryland’s intoxication at the time of his arrest. Mr. Yoo made a

compelling argument to the effect that any police car video footage, and jail cell video footage, might have been useful in determining whether Mr. Ryland needed to be kept in custody overnight because of intoxication. He raises R v McKelvey and R v Sparrow in that regard. [ 79 ] It is clear that by the time of trial, no video footage was available. The information given to the trial judge on February 8 was that the jail cell footage no longer existed, and there was no information to suggest that police car video footage ever existed.

Indeed, the evidence at trial confirmed that no police car video footage ever existed, as none of the police officers involved had activated their emergency lights. [ 80 ] Mr. Yoo noted that his initial request for disclosure (received by the Crown at the latest on October 27, 2014, some six weeks after the arrest, included a request for “all video of the accused while in custody and at the booking station, as well as “copies of all video taken in regards to the circumstances of the offence.” [ 81 ] The Crown’s response, given October 29, 2016, did not provide any video footage.

That subject was not specifically addressed, but the Crown’s letter indicates: “...please note that the Crown will not necessarily provide all that is listed in your disclosure request. In the event that you have not been provided with particular items sought in your letter and wish to seek production of the same, please contact the Crown assigned to the Courtroom on the next Court date of this matter. [ 82 ] Mr. Yoo reviewed the disclosure, and replied on November 20, 2014: “The writer is requesting the 911 recordings that were made in relation to the alleged incident.” That was provided on December 15, 2014.

No reference was made in his letter to video footage, whether from the scene of the arrest or from the police cells. [ 83 ] Mr. Yoo next wrote the Crown on January 5, 2016 saying, “further to our initial disclosure letter, we are still waiting for the cell block video of the accused while he was detained.” On January 7, the RCMP advised that the cell block footage “will no longer be available.” The issue was not raised again until the commencement of the trial on February 8. [ 84 ] The January 25, 2016 Charter notice did include a

section 7 allegation and noted: 2. The video in the police station has not been disclosed in a timely manner to the Accused thereby breaching the Accused’s right under

Section 7 of the Charter of Rights and Freedoms. Specifically, the following disclosure but has not been provided: a. The video in the police vehicle. [ 85 ] The January 25 notice also referenced Stinchcombe by name and citation. R v Sharma , 2014 ABPC 131 , was also referenced. The Crown raised no issue over the sufficiency of the notice as it related to

section 7 under the first notice or under the second notice, and the

section 7 voir dire was held on November 21. [ 86 ] The discussion on February 8 confirmed that the cell block video no longer existed. The Crown agreed to produce the detention logs, which it did on March 17 or 18. [ 87 ] The second Charter notice, filed November 2, references a

section 7 breach, stating that “the said disclosure has not been disclosed in a timely manner to the Accused.” It then references “late disclosure which was produced on March 17 and 18, 2016.” [ 88 ] Mr. Ryland has not appealed the trial judge’s ruling with respect to

section 7 . However, he raises late and inadequate disclosure as one of the reasons for the adjournment on February 8 and the delay between then and the conclusion of the trial on November 21. [ 89 ] Since disclosure continued to be raised on this appeal, I do not see merit to the

section 7 argument in any event, whether on its own or as an adjunct to the

section 11(

b) Jordan issue. [ 90 ] Requesting disclosure of something does not necessarily mean it must be disclosed.

The Crown must make disclosure of all relevant first party records, but that obligation is qualified by “relevant.” The Crown is not expected to second-guess counsel as to why something that on its face has no apparent relevance, may be relevant to a specific Charter argument or defence that is not obvious from the nature of the offence or the facts then known by the Crown. [ 91 ] I can see in the circumstances of this case how any police car video would be relevant as it may have recorded some of the incident itself and could have been used to cross-examine police witnesses, or indeed used by them in their direct evidence to show what happened while they were on scene.

But there is no evidence that there was ever any police car video taken. Indeed, the evidence at trial was that there was no such video footage. [ 92 ] With respect to the cell block video, while requested at an early stage, it was not provided. It was not referenced in a request for further disclosure, and only came up again shortly before trial. By that time, it had been destroyed. At the time of the request for disclosure (while the video apparently existed), it would not have been obvious to anyone other than someone intending to make a

section 9 argument based on unlawful detention that the cell block footage might be relevant to anything at the trial. [ 93 ] Absent knowledge of its potential relevance, I do not fault the Crown for not taking steps to secure it or provide the cell block video.

The defence had more than a year to make a further request, or make an application for disclosure and did nothing about it until just before trial. [ 94 ] While I question the merits of the RCMP policy to destroy cell block video (or any other video that might contain images of the accused) within a short period of time from the date of the video, in the circumstances of this case, I am hard pressed to see how the video might have assisted the accused in any way.

[95] All of this becomes moot in any event, as the only relevance of the cell block video was in relation to a

section 9 argumentthat did not proceed. [96] To summarize my findings with respect to

section 9, I conclude: 1. The original Charter notice was properly ruled deficient by the trial judge in relation to the

section 9 application; 2. The trial judge made no error in adjourning the trial and directing that a further and better Charter notice be provided; 3. The second Charter notice was properly ruled deficient by the trial judge in relation to the

section 9 application; 4. The trial judge made no error in striking the Charter notice as it related to

section 9; and 5. The trial judge made no error in refusing an adjournment request to allow a further Charter notice to be filed, and by completingthe trial without reference to

section 9. Jordan [97] Mr. Yoo argues that the trial judge erred in rejecting his

section 11(

b) application because she misunderstood the reason forthe adjournment of the February 8 trial. He says the reason for the adjournment was so that the Crown could comply with theirdisclosure obligations relating to the video footage. [98] I have carefully reviewed the transcript. It is beyond any doubt that the adjournment was expressly for the purpose ofallowing Mr. Yoo to file an amended Charter notice to properly particularize the

section 9 application. No case law had been provided,and despite the brief description of the nature of the application given before that direction was made, the trial judge considered thenotice deficient. There was no discussion at all of any deficiency in the Charter notice on

section 7 issues or otherwise relating to thevideos. [99] To the extent Mr. Yoo misunderstood the reason for the adjournment, or believes the trial judge mischaracterized it, orwhether he has since resiled from accepting responsibility for the adjournment, the adjournment was properly characterized as a defence-caused adjournment. [100] It resulted from the inadequacy of the Charter notice relating to

section 9. The Crown cannot be held responsible for anyportion of that time. [101] As noted in R v Warring, 2017 ABCA 128, the standard of review on appeals concerning the trial judge’s fact findings inrelation to a Charter breach is palpable and overriding error, and attribution of that delay is reviewable on the correctness standard: [5] When considering Charter breaches, the trial judge’s findings of fact regarding the cause of a particular delay are reviewable on astandard of palpable and overriding error.

Attribution by the trial judge of a particular delay to the appellant or to the respondent is aquestion of law reviewable on a correctness standard: R v CD, 2014 ABCA 333 at paras 26-28, 584 AR 222. [6] A verdict may be set aside as unreasonable if it is one that no reasonable trier of fact properly instructed could have returned onthe evidence adduced at trial: R v Yebes, (SCC), [1987] 2 SCR 168; R v Biniaris, 2000 SCC 15 at para 36,[2000] 1 SCR 381. This may involve some limited reweighing of the evidence, but that reweighing cannot extend to this Court retryingthe case.

The review is restricted to assessing the evidence adduced before the trial judge to determine whether the conclusion isunreasonable or cannot be supported by the evidence: R v Saddleback, 2013 ABCA 250 at paras 12-13, 556 AR 17. [7] Finally, it is an error of law if the reasons are deficient to the point of precluding meaningful appellate review: R v Sheppard,[2002] 1 SCR 869, 2002 SCC 26 . [102] The trial judge found the adjournment resulted from a deficient Charter notice. That finding was reasonable, and not tainted bypalpable and overriding error.

Nor is her finding that the defence had acknowledged responsibility for the delay. [103] Attributing the delay to the defence was on the basis that it was caused entirely by the defence, and the defence hadacknowledged responsibility for the delay. Those findings are not tainted by any error, and was correct on the fact findings made by thetrial judge. [104] Accordingly, there is no valid basis for me to interfere with the decision of the trial judge dismissing the Jordan application. Conclusion [105] Mr. Ryland’s appeal is dismissed. Heard on the 16th day of October, 2017.

Dated at Edmonton, Alberta, this 21st day of December, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Danielle Fostey Crown Prosecutors’ Office for the Respondent Rockey Yoo Cooper & Company for the Appellant