R v JEV, 2018 ABQB 1033

Court of Queen’s Bench of Alberta Citation: R v JEV, 2018 ABQB 1033 Date: 20181218 Docket: 110531464Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown/Respondent - and - JEV Accused/Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Oral Reasons for Decision of the Honourable Mr. Justice D.K. Miller Regarding the Accused’s

section 11(

b) Charter Application _______________________________________________________ [ 1 ] The following is a written version of an oral decision delivered on November 21, 2017. This written decision is provided for readier accessibility; the oral decision remains the official decision of the Court.

[ 2 ] JEV is charged with two historic sexual assaults under

section 271 of the Criminal Code , covering a six year period involving two complainants. Both male complainants were under 16 years of age at the time of the alleged offences. [ 3 ] JEV brings an application (filed October 20, 2017) seeking a stay of proceedings due to the fact his rights pursuant to

section 11(

b) of the Charter , namely the “right to be tried within a reasonable time” have been infringed. This is what has now commonly been referred to as a Jordan application pursuant to R v Jordan , 2016 SCC 27 (Jordan) . [ 4 ]

Section 11(

b) of the Charter reads as follows: 11. Any person charged with an offence has the right: (

b) To be tried within a reasonable time; [ 5 ] The accused was convicted by a jury on September 16, 2013. He appealed and the Alberta Court of Appeal, by consent of the Crown, directed the matter back to this Court for a retrial on February 16, 2016. [ 6 ] This application under

section 11(

b) of the Charter is resisted by the Crown. [ 7 ] The decision of the Supreme Court of Canada in Jordan has required trial judges to become something akin to forensic accountants in determining whether an accused has come to trial in a reasonable time. The Supreme Court sent shockwaves through the legal system in their analysis and has caused all players in the justice system - prosecutors, defence counsel, court administration and trial judges - to take notice.

Important background principles cited in the case (with appropriate paragraph numbers) are as follows: 3 An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high. 4 Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative.

Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s 11(b).

These difficulties have fostered a culture of complacency within the systems towards delay. ... 20 Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions.

Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence. 21 At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay.

Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole.

Section 11(

b) was not intended to be a sword to frustrate the ends of justice ( Morin , at pp 801-2). ... 25 Last but certainly not least, timely trials are important to maintain overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin , “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p 810). Crime is of serious concern to all members of the community.

Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov , at p 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p 1221). ... 38 In sum, from a doctrinal perspective, the s 11(

b) framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over-burdened trial courts. [ 8 ] The timeline of the case is attached as Appendix “A” to this decision. The timeline was prepared by the Crown Prosecutor and agreed to by defence. This timeline reveals that 80.5 months have passed from the laying of the Information (May 10, 2011) to the end of the scheduled trial (December 1, 2017).

From this total of 80.5 months the agreed upon appeal period of 22 months should be deducted resulting in 57.5 months. [ 9 ] From this 57.5 month time period, the defence acknowledges that delay either caused by the defence or delays that were waived by the defence should be subtracted from the total. The defence acknowledges a 3.5 month period for which they were responsible while they searched in vain for reasons for the retrial from the Court of Appeal. Also to be taken from the total is 8.5 months described as a discrete event, namely, the accused’s extradition from Greece.

A further two months shall be removed as a result of the delay in sentencing due to the illness of the sentencing judge, according to the defence. According to the defence analysis, this then leaves a total time period from beginning to end, subject to reductions, of 43.5 months. [ 10 ] This case involves more than simply whether the accused person has reached his trial within a reasonable time. This case

involves issues of getting to trial within a reasonable time, but also dealing with the delay in sentencing, appeal proceedings, defencedelay and scheduling a retrial. [11] The Crown’s position is that the overall timeline for this case amounts to 80.5 months from May 10, 2011 to December 1,2017 as outlined in the attached chart.

From that total should be deducted the entire sentence delay of 8 months and appeal delay of 21.75months, leaving a reduced time of 50.75 months. [12] From the 50.75 months the Crown argues that a further 15.5 months should be deducted because of the defence waiverresulting in a setting of the trial on August 22, 2016 to the end of trial December 1, 2017. This results in a total reduced time to 35.25months which must be then further reduced by 3.5 months for defence delay in seeking to determine the reasons for the Court of Appealorder for a retrial.

This deduction, according to the Crown, brings the net delay down to 31.75 months. The presumptive ceiling is 30months. Discrete events must then be considered and the Crown alleges that the 8.5 month period from the charge to JEV’s extraditionfrom Greece is such a discrete event that must be taken into account.

The presumptive ceiling of 30 months is easily met when theextradition is taken into account, thereby reducing the delay to 23.25 months. [13] The Crown then argues that the defence has not established that the case took longer than the norm and that the accusedhimself has not made every effort to expedite the proceedings. [14] Therefore, the Crown concludes this delay is well below the presumptive ceiling of 30 months; there is no “unreasonabledelay” and the application of the accused, JEV, should be dismissed. [15] The Alberta Court of Appeal in R v Mamouni, 2017 ABCA 347, adapts an edited structure of the Jordan analysis based on Rv Coulter, 2016 ONCA 704.

After summarizing the structure, the Court of Appeal provides direct instructions to trial judges at paragraph58: Once the Jordan/Cody analysis has been completed, the trial judge must then take a “last look” at the entire process. As Jordan states atpara 58, the expiration of the presumptive deadline just marks the point where the burden of proof shifts to the Crown to demonstratethat the trial was still conducted “within a reasonable time”, as mandated by s 11(

b) and notes that “... the judge must look at thecircumstances of the particular case at hand” and notes, at para 80: Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay isreasonable and no stay will issue. No further analysis is required. Accordingly, a trial judge hearing a s 11(

b) application must first perform the Jordan/Cody analysis as outlined in the previousparagraph, and determine whether the presumptive time limit has been exceeded.

If it has, the second step is to see if the Crown has metthe burden of proof to show that any delay was reasonable, or in other words, that the trial was still conducted within a reasonable time.The third and overlapping step is that the trial judge must examine the proceedings as a whole, to determine if the complexity andcircumstances of the particular case justified the amount of time taken, such that, notwithstanding it exceeds the presumptive time limit,the trial was in fact conducted within a reasonable time. [16] There is no real disagreement between counsel as to the formula.

The disagreement lies in the characterization of three ratherdistinct time periods or the classification of certain acts. These are: 1. Whether the sentencing time is to be included in the calculation. 2. How should the retrial time be calculated in any delay calculation. 3. What constitutes defence waiver. 1. Sentencing [17] As it relates to sentencing it appears clear that the Supreme Court of Canada in Jordan confirms that

section 11(

b) applies tosentencing proceedings. This was not the view of Justice Wilson in R v Simon, 2017 ABQB 585. However, while the Supreme Courtspecifically references R v MacDougall, (SCC), [1998] 3 SCR 45 (MacDougall), it appears clear to me that the law inCanada is such that sentencing is included in the

section 11(

b) analysis. The entire thrust of the Jordan decision is to focus on the delayin the system and the complacency of all actors within the system. There is nothing in the case to suggest that “delays and complacency”do not occur in the sentencing period. The Supreme Court in MacDougall concluded in paragraph 2 “that the right to be tried within areasonable time extends to sentencing”. [18] Nothing in Jordan takes anything away from that finding. “Tried within a reasonable time” pursuant to

section 11(

b) of theCharter protects interests at the pre-conviction and post-conviction stage. It is easy to see how a delay in sentencing may adverselyaffect the accused’s

section 11(

b) interests, which include his or her liberty interest, security interest and indeed fair trial interests. Thepublic’s interest in a system that conducts trials fairly, justly and efficiently can also be impacted by a delay in sentencing. There can beno doubt that in the unanimous decision of the Supreme Court of Canada in MacDougall the holding was that sentencing is included inthe accused’s right to be tried within a reasonable time. In this respect, I accept the arguments of counsel for JEV. 2. Delay in Relation to the Retrial [19] The Jordan case was not decided in a vacuum.

True, it did not expressly discuss and deal with the issue of retrials; however,other jurisprudence exists in relation to retrials. Specifically the Supreme Court of Canada in R v Potvin, (SCC), [1993]2 SCR 880 (Potvin), states at paragraph 33 that:

This does not mean that when there is an adjudication relating to a charge which is appealed, s 11(

b) is spent. If on the appeal the judgment is set aside and the matter is remitted for trial, the accused reverts to the status of a person charged. As stated by D.H. Doherty (now a justice of the Court of Appeal for Ontario) in “More Flesh on the Bones: the continued Judicial

Interpretation of s 11(

b) of the Canadian Charter of Rights and Freedoms ” (1984), Canadian Bar Association – Ontario; Annual Institute on continuing Legal Education, at p9:

Section 11(

b) does not appear to operate at the appellate stage.

Section 11(

b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order by the appellate court. [ 20 ] Explaining the terminology in Potvin , the Alberta Court of Appeal in R v Barros , 2014 ABCA 367 , at paragraph 53 states: The use of the term “rewound” by the majority suggests that the clock stopped ticking, and that it is being “rewound” in order to start it ticking again. In other words, the s 11(

b) clock stops when an accused has been acquitted, but if a new trial is ordered after an appeal the clock is “rewound” in order to start ticking again. Hence, s 11(

b) will require consideration of the pre-trial delay and any delay following the period after the ordering of a new trial. It follows that a further appeal will stop the clock again, and that it will again restart if and when a new trial is ordered by the Supreme Court, as it was in this case. [ 21 ] The fact that Jordan does not specifically address retrial simply requires further reading of cases, not an exclusion of the retrial time in the calculation of the delay. I am therefore not persuaded that retrial time should be excluded from the delay calculation. 3.

Defence Waiver [ 22 ] The Crown forcefully argues that the 15.5 month period from the date the retrial was set, being August 22, 2016, to the end of the scheduled two week trial, being December 1, 2017, should be excluded from the total delay time due to the fact that the defence implicitly waived the delay. There is nothing on the record indicating that the defence waived any Jordan rights.

The Agent for defence counsel simply agreed to the trial as a normal and inevitable trial time in this jurisdiction. [ 23 ] Renke J in R v Tetreault , 2017 ABQB 349 , found that the defence waived its rights agreeing to the trial date. Specifically in paragraph 21 the Court states: There is no evidence to suggest that these dates were accepted under protest or that the Defence were somehow forced to accept these dates; there was no evidence that by agreeing to these dates the Defence was simply acquiescing to the inevitable.

This agreement amounted to a waiver. (I recall Heikel at para 25: “It follows that I reject the defence submission that no such inference should be drawn on the basis that agreeing to a date simply means that counsel is available on that date.”) [ 24 ] In this case there is evidence from the accused JEV in an Affidavit sworn and filed on November 14, 2017 stating the following: 2 I understand that I have the right to be tried within a reasonable amount of time. I understand that this means that I should be tried within the time limits set by the constitution.

At no time during my case did I waive my right to be tried within a reasonable amount of time. 3 I was advised in the spring of 2016 by my lawyer, Greg White, and I did verily believe that the trial of this matter would not be any sooner than one to one and a half years from the spring of 2016 due to court and judge availability. When I was told this by my lawyer, I accepted it at face value. 4 When I was advised that my trial was booked for November of 2017, I accepted this for a number of reasons. First, because I had heard from my lawyer that it would take some time to get a trial date.

Second, because I had seen in the newspaper, that in Alberta, it took a long time to get a trial. And, third, because my personal experience from the first trial told me that it would take some time to get a trial. 5.

In accepting that my trial date was November of 2017, I was not waiving my right to be tried within a reasonable amount of time. [ 25 ] This evidence was uncontradicted and seems to fill the vacuum that would automatically take one to the conclusion reached by Renke J in R v Tetreault and the comments made by Fraser JA (as she then was) in R v Heikel , 126 AR 298 (CA). [ 26 ] I do not see the actions of the defence, especially in light of the evidence before me, as

an act of waiving the delay from August 22, 2016 to the end of trial December 1, 2017. Therefore, the 15.5 month period should not be subtracted as defence delay. 4. Conclusion [ 27 ] Accordingly, the calculation of the delay in my view is as follows: 1. From the time of the Information to the end of the second trial is 80 months (May 10, 2011 to December 1, 2017). 2. One must deduct the appeal period of 22 months which results in a 58 month delay. (April 22, 2014 to February 16, 2016).

3. From that 58 month period deduct the 8.5 month period for the extradition which results in 49.5 months delay. 4. While I have found that the period of time for sentencing is not to be deducted from the delay, the defence has conceded and I haveagreed that the two month period for the sentencing judge’s illness can be deducted leaving a total of 47.5 months delay. 5. In addition, defence concedes that a 3.5 month period over the summer of 2016 wherein they searched for the Court of Appealreasons for the order for retrial should be deducted. This then brings the total delay down to 44 months.

While the Court acknowledgesthe defence concession, it seems that searching for a Court’s reasons for a decision to direct a retrial is what is to be expected of defencecounsel to properly prepare for a new trial. If contested, I am not sure I would attribute all the 3.5 month delay at the feet of defence. 6. I have concluded that there is to be no further deduction for sentencing nor should the 15.5 months from August 2016 to the end ofthe trial be deducted from the delay time. 7.

All have agreed and I have found that this case is not a complex case and therefore no consideration is to be given in this regard tojustify a delay over the ceiling. 8. The issue of the time for retrial since Jordan has produced a variety of trial decisions ranging from not including retrials at all inthe 30 month ceiling, (R v Richard, 2017 MBQB 11), to a somewhat arbitrary extension of the ceiling by 12 months for a retrial, (R vSimon, 2017 ABQB 285). In this case even if the arbitrary extension of 12 months were applied to the delay, it still exceeds that newrevised ceiling. 9.

In terms of any transitional exceptional circumstances, I am not persuaded that they apply in this case. I say this for several reasons:

i) The present case has a much longer delay than the companion case to Jordan, namely, R v Williamson, 2016 SCC 28(Williamson). ii) At least one third of the delay in the present case has occurred in the post-Jordan world. iii) In the pre-Jordan context, JEV has accumulated delay in excess of the time limits under the previous

section 11(

b) regime of R vAskov, (SCC), [1990] 2 SCR 1199. iv) The prejudice suffered by JEV is equal to, if not exceeding, that of Mr. Williamson in that he has been ostracized, spent almostfour months in pre-trial custody including a considerable period of time in segregation, he has been apart from his 80 year old motherwho depends on him back in Greece, he has lost employment, and he has found it very difficult to find work given the charges he faces. [28] I can do no better than paraphrase paragraph 38 of Williamson.

The Supreme Court of Canada stated that notwithstanding thevery serious charges faced by the accused, the victims had already undergone the ordeal of testifying at a criminal trial, and the accusedwas already convicted by a jury of his peers, nonetheless, timely justice is one of the hallmarks of a free and democratic society. Extremedelay works to the detriment of everyone whereas timely justice accrues to the benefit of all. The period of delay in this case isundoubtedly unreasonable, and what’s more, it is unconstitutional.

The Court directs a judicial stay of proceedings in relation to bothcharges faced by JEV. Heard on the 20th day of November, 2017. Decision delivered orally on the 21st day of November, 2017. Dated at the City of Lethbridge, Alberta this 18th day of December, 2018.

D.K. Miller J.C.Q.B.A. Appearances: D. Bradley Stephenson – Alberta Crown Prosecutors for the Crown/Respondent Greg J.

White – Michael Dietrich Law Office for the Accused/Applicant APPENDIX “A”: Timeline Court Level Date Type of Proceeding Description of Event # of Months From Charge Provincial May 10/11 Information Information sworn and unendorsed warrant issued in public interest, to commence extradition proceedings 0 Jan. 19/12 Arrest Accused arrested and detained in Greece under extradition proceedings 8.5 April 4/12 Return to Canada Accused transported from Greece to Calgary in custody of RCMP, re-arrested in Calgary by Taber Police Service 11 April 5/12 First Appearance Accused appears in custody, remanded by consent for show cause 11 April 13/12 Bail Hearing Accused appears in custody, counsel M.

Dietrich goes on record and adjourns show cause to review disclosure and prepare for bail hearing 11.25 April 23/12 Bail Hearing Consent release, election reserved and adjourned at defence request to June 12/12 11.5 May 9/12 Bail Amendment Matter brought forward at defence request to amend bail condition, Adjourned back to June 12/12 12 May 11/12 Bail Amendment Matter brought forward at defence request to further amend bail condition, Adjourned back to June 12/12 12 June 12/12 Election & Plea Defence request to adjourn to complete review of disclosure 13

Provincial Court July 17/12 Election & Plea G White indicated as counsel. Adjourned to have Accused present for election and fixation of Preliminary Inquiry dates 14 Aug. 7/12 Election & Plea Mutual request for adjournment to Sept. 11/12 find dates for Preliminary Inquiry 14.75 Aug. 24/12 Bail Amendment Matter brought forward at defence request to further amend bail condition, Adjourned back to Sept 11/12 15.25 Sept. 11/12 Election & Plea Defence elects QB judge & jury trial with Preliminary Inquiry, set by agreement for first available full day, Feb. 28/13 16 Dec. 4/12 To speak to Matter brought forward to

schedule Crown application for CCTV testimony at Preliminary Inquiry 19 Dec. 28/12 Crown Application Application for CCTV testimony argued, adjourned for consideration and further discussions between the parties 19.75 Jan. 28/13 Crown Application Consent Order for CCTV testimony at Preliminary Inquiry, venue moved from Taber to Lethbridge and Feb 28/13 date confirmed 20.75 Feb 28/13 Preliminary Inquiry Preliminary Inquiry held, Accused committed to stand trial in QB on all counts, directed to appear in QB Arraignments March 11/13 21.75 Queen’s Bench 1 st Trial Mar. 11/13 Arraignment M.

Hlady on record in place of G. White.

By agreement 4 to 5 day judge and jury trial set for first available dates, to commence on Sept. 16/13, pre-trial conference set for Aug. 12/13 22.25 Aug.12/13 Pretrial Conference 27.5 Sept 16/13 Trial 1 st trial commences 28.5 Sept. 20/13 Trial 1 st trial concludes, Accused found guilty on both counts, bail revoked pending sentencing , sentencing adjourned to Feb. 3/14 for preparation of PSR and submissions of parties 28.75 Court of Appeal Oct. 8/13 Defence Appeal Accused files Notice of Appeal 29.25 Queen’s Bench: 1 st Trial Feb. 3/14 Sentence Hearing Sentencing submissions made, adjourned to permit counsel to address court’s concerns with joint submission 34 Feb 4/14 Fixation Adjourned to find dates for continuation of sentence hearing 34 Feb 10/14 Fixation Continuation of sentence hearing set for Feb 24/14 34.25 Feb 28/14 Sentence Hearing Sentence hearing adjourned as justice unavailable due to illness 34.75 Mar. 10/14 Fixation Adjourned to find date 35.25 Mar. 24/14 Fixation Continuation of sentence hearing set for April 22/14 35.75 Apr. 22/14 Sentence Hearing Accused sentenced 36.75 Court of Appeal Feb. 16/16 Defence Appeal Crown consents to Defence Appeal, appeal allowed, matter remitted to QB for retrial, Accused remains in custody to appear in QB Arraignments Mar. 14/16 58.5 Mar. 14/16 Arraignment G.

White goes back on record, adjourned to next arraignment date to discuss terms of release 59.5 April 11/16 Arraignment Defence requests to adjourn show cause to next arraignment date 60.5 April 25/16 Arraignment Accused released by consent, Defence seeks adjournment to June 13 61 Court Level Date Type of Proceeding Description of Event # of Months From Charge

Queen’s Bench: 2 nd Trial June 13/16 Arraignment Consent adjournment to discuss required time for trial 62.75 June 27/16 Arraignment Defence application to adjourn to August 22/16, counsel wishing to make inquiries concerning Defendant’s appeal 63.25 Aug. 22/16 Arraignment 2 week judge and jury trial scheduled by agreement for Nov. 20/17 to Dec 1/17 65 Sept. 18/17 Pretrial Conference 77.75 Sept. 26/17 Re-Election Defendant re-elects to QB judge alone trial 78 Oct. 3/17 Defence Application Defence makes application for disclosure of third party youth records in possession of Crown , Taber Police Service and Lethbridge Police Service, adjourned to Oct. 24/17 for proper service on police agencies 78.25 Oct. 24/17 Defence Application Defence application for disclosure proceeds, order made for disclosure 79 Oct. 30/17 Pretrial Conference 79.25 Nov. 20/17 2 nd Trial Retrial scheduled to commence 80 Dec. 1/17 2 nd Trial Retrial scheduled to conclude 80.5 Court Level Date Type of Proceeding Description of Event # of Months From Charge