R v Parent, 2021 ABQB 66

Court of Queen’s Bench of Alberta Citation: R v Parent, 2021 ABQB 66 Date:20210126 Docket: 180198053Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Stephane Parent Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict.

Corrected judgment: A corrigendum was issued on June 10, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: The restriction on publication ended on January 21, 2022. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Introduction [ 1 ] On February 15, 2018 an information was sworn charging Stephane Parent with second degree murder in the 2002 death of Adrienne McColl. Following his arrest Mr. Parent was remanded into custody at the Calgary Remand Center, where he awaits trial. [ 2 ] Since arrest, Mr. Parent has been represented by three different counsel.

His trial was first scheduled to conclude in April, 2020. It has twice been adjourned – first due to the Covid-19 pandemic, and second when Mr. Parent’s counsel withdrew shortly before trial. [ 3 ] The earliest date available to the Crown, defence, and the Court for the most recently rescheduled trial will see it completed on October 1, 2021.This is forty three months, 17 days following the charge. [ 4 ] Mr. Parent applies for a stay of proceedings, on the basis that the effluxion of time constitutes a breach of his s 11(

b) Charter rights. [ 5 ] To decide this matter, I must assess the reasonableness of the time taken to complete the trial within the analytical framework established in R v Jordan , 2016 SCC 27 and R v Cody , 2017 SCC 31 . Those cases set a presumptive ceiling of thirty months for bringing a matter such as this through to a trial conclusion after deducting delay occasioned by defence conduct and/or exceptional circumstances such as discrete, unforeseeable events.

If the remaining delay is less than thirty months it is presumed to be reasonable unless the Accused can satisfy me otherwise. [ 6 ] Applying this framework, I have determined that the remaining delay was twenty six months, nine days. The first adjournment was due to a discrete exceptional event – the global Covid-19 pandemic – which accounts for a delay of six months, twenty six days.

The second adjournment was caused by defence delay, or in the alternative another discrete exceptional event – the withdrawal of defence counsel shortly before the trial was to commence in October 2020 – which accounts for a further ten months, ten days. [ 7 ] The remaining delay is well below the thirty month presumptive ceiling. It is presumed to be reasonable unless the Accused can satisfy the Court that it is not. Because he has not done so, the application is dismissed. My reasons for reaching this conclusion follow, starting with a description of the sequence of events leading us to this point. II.

Procedural History [ 8 ] The procedural history of this case can be summarized as follows: 1. Information sworn February 15, 2018 2. First appearance and adjournment for disclosure February 20, 2018 3. Initial appearance by defence counsel and adjournment for disclosure April 24, 2018 4. Appearance in APC to

schedule Preliminary Inquiry May 23, 2018 5. Pre-preliminary inquiry meeting August 30, 2018 6. Preliminary Inquiry, with uncontested committal April 15, 2019 7. Defence counsel changes to Mr. Lutz to achieve early trial date in April 2020 May 24, 2019 8. Trial date set for March 30-April 24, 2020, s 525 review waived May 24, 2019 9. Jury trials suspended until May 31, 2020 due to Covid-19 pandemic March 13, 2020 10. Counsel appear in CAC to set new trial date of October 26-November 20, 2020 March 20, 2020

11. Mr. Parent files a handwritten Jordan application September 3, 2020 12. Mr. Parent’s counsel advises Crown of his intention to withdraw September 24, 2020 13. Matter brought forward to CAC. Withdrawal application granted, with trial date maintained October 2, 2020 14. Trial adjourned in CAC by Justice Gates, with time left open to hear a Jordan application October 9, 2020 15. Mr. S. Kothari appears for Accused in CAC. Arrangements made for delivery of disclosure October 23, 2020 16. Appearance in CAC. Jordan application scheduled for hearing.

Trial date set for September 7- October 1, 2021 (Court first available in March 2021, Counsel for Crown and Defence first available together in September 2021) November 6, 2020 17. Jordan application heard November 20, 2020 [ 9 ] Aside from these key events, a number of disclosure packages were provided by the Crown during the lead-up to trial. These included: 1. March 28, 2018 RCMP No. 1 – 48.1 GB of data, or 5439 files and 91 folders electronically provided; 2. November 15, 2018 RCMP Disclosure No. 2 – 12.9 GB of data, or 345 files, 9 folders electronically provided; 3.

March 13, 2019 RCMP Disclosure No.3 – 4.9 GB of data, or 55 files, 5 folders electronically provided; 4. November 27, 2019 RCMP Disclosure No. 4 – 54 MB of data or 39 files, 4 folders electronically provided. III. Reasons for Delays [ 10 ] As can be seen from the chronology of events, the trial of this matter has twice been adjourned, each time with a significant delay. The Accused says that for the purpose of Jordan neither of these delays should be deducted. The Crown says that they should be deducted because they were due to a discrete, exceptional circumstance and/or defence conduct.

I will discuss each adjournment in the sequence that they occurred, before turning to the analytical framework dictated in Jordan for determining the reasonableness of the resulting delay. A. The First Adjournment – From April 24 2020 to November 20, 2020 (scheduled end dates of trial) [ 11 ] If the trial had proceeded as originally scheduled, it would have concluded by April 24, 2020.

This would have been twenty six months and nine days from the date of charge. [ 12 ] Unfortunately, the trial did not proceed at that time. [ 13 ] Initially, it was suspended by Master Order No. 1 issued by Chief Justice Moreau on March 13, 2020. This order suspended all jury trials due to the Covid-19 pandemic, pending rescheduling. Counsel then agreed to bring the matter back to Criminal Arraignment Court (“CAC”) on March 20, 2020 in order to book a new trial date as soon as possible.

This was accommodated by the Court. [ 14 ] A new trial date was set, with voir dires to be heard commencing October 26, 2020 and the evidentiary portion of the trial proceeding from November 2 to November 20, 2020. The rescheduling was done in advance of the Court’s second Master Order whereby jury trials were again suspended. In result the case was effectively moved to the head of the line in terms of scheduling. [ 15 ] The Crown argues that the first adjournment was clearly due to a discrete, exceptional event in the form of a global pandemic. I agree.

Indeed, if the Covid-19 pandemic is not a discrete, exceptional event in Canada in general, and for the judicial system in particular, it is difficult to envisage what such an event would be: R v Harker , 2020 ABQB 603 . [ 16 ] To his credit, the Accused does not take issue with this characterization. Neither does he take issue with the reasonableness of the steps taken by the Crown and the Court to reduce the delay caused by the first adjournment.

Instead, he argues that the government failed to properly prepare in advance for catastrophes such as the Covid-19 pandemic so as to allow important jury trials such as his to proceed on a timely basis. [ 17 ] In Jordan , the SCC discussed at para 75 the quantification of delay caused by discrete exceptional events in these terms: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of

prioritizing cases that have faltered due to unforeseen events... Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [ 18 ] I do not accept that Jordan can be interpreted to impose a duty on government, and by extension, the judicial system to foresee the unforeseeable. Nor does it mean that for the purpose of Jordan , the Courts should sit in judgment of the general state of emergency preparedness by government.

Rather, the Crown and the justice system are called on to take reasonable measures to prioritize cases that have faltered due to unforeseen circumstances of all kinds as and when they occur. [ 19 ] That is exactly what happened in this case. All of those involved, including defence counsel, the Crown and the Court took advantage of the steps available to reduce the delay caused by the first adjournment. The case was properly prioritized so that it could proceed as soon as reasonably possible while maintaining the health and safety of those involved and complying with public health directives.

This was done in the context of a broad range of measures instituted by the Court to maintain services during the pandemic, including development of off site facilities for jury selection and trials that would allow for social distancing to be maintained, together with enhanced hygiene, and physical barriers within the courtroom itself. [ 20 ] Accordingly, the entirety of the delay due to the adjournment must be deducted from the total period of delay for the purpose of determining whether the Jordan ceiling has been exceeded. B.

The Second Adjournment – November 20, 2020 to October 1, 2021 (scheduled end dates of trial) [ 21 ] As a result of the first adjournment, pre-trial voir dires were to commence on October 26, 2020 followed immediately by the trial proper. [ 22 ] However, in mid-September the Accused took an unusual, and unfortunate step. He filed a handwritten Jordan application, either without the knowledge of or against the advice of his defence counsel.

In response defence counsel advised the Crown of his intention to seek leave to withdraw from the case, and was allowed to do so on October 2, 2020. [ 23 ] At this point, there remained only 24 days until pre-trial voir dires were to start. Mr. Parent had no lawyer. No defence subpoenas had been served. The handwritten Jordan application had been filed but not argued. Replacement counsel needed to be found and approved by Legal Aid, and once retained would need to review the voluminous disclosure. [ 24 ] A week later the matter returned to CAC. By this time, replacement counsel had been identified.

He was in attendance in CAC on other matters and was able to provide some comments of assistance to the Court, but advocacy on behalf of Mr. Parent would have to await a retainer. [ 25 ] The presiding Justice in CAC heard submissions from the Crown and the Accused regarding scheduling issues. He was advised by Mr. Parent’s prospective counsel that he had not yet been retained but was hoping to meet with the Accused at the Remand Center later that day. The Court was also advised that the new counsel would not be available for a trial in November in any event. [ 26 ] The presiding Justice stated that Mr.

Parent had two choices: to proceed with the trial as scheduled, acting on his own behalf; or to have the trial adjourned in order to retain new counsel. The Accused responded that he needed a lawyer, but would not go so far as to explicitly request an adjournment for that purpose. [ 27 ] The trial was adjourned in order for the Accused to retain counsel, with the timing of the trial to be addressed once that had happened.

On reappearance in CAC on November 6, 2020, a new trial date was set, with pre-trial voir dires and jury selection to take place from September 7 to 10, 2021 followed immediately by the trial proper from September 13 to October 1, 2021. Although there was Court availability in March 2021, the dates selected were the first available to both the Crown and the defence. [ 28 ] In result, conclusion of the trial was delayed by a further ten months and ten days. [ 29 ] In argument before me, neither counsel engaged the issue of how this delay should be characterized for Jordan purposes.

That is, whether it was caused by defence delay or by a discrete exceptional circumstance. [ 30 ] The Crown argued that in the circumstances of this case, the result is the same irrespective of how the delay is characterized per Jordan : it must be deducted. The Accused took a different approach. He argued that the delay was not due to anything done by the Accused, nor was it due to a discrete exceptional circumstance.

Rather, he said, it was due to a precipitous decision by the presiding Justice in CAC to vacate the trial date, in order for a new date to be set following engagement of replacement counsel. [ 31 ] In my view the second adjournment was caused by the fact that the Accused was not prepared to proceed to trial. He clearly and correctly stated in CAC on October 9, 2020 that he needed a lawyer to properly defend the murder charge against him.

I agree with the Accused that the presiding justice could have adjourned the matter for another week to allow the Accused to finalize the engagement of counsel, or to further consider the option of defending himself. However, to do so would have been an exercise in postponing the inevitable or worse, an invitation to the Accused to make yet another blunder by representing himself at trial, with even less time to properly prepare. [ 32 ] The Accused’s unpreparedness for trial is best characterized as defence delay under Jordan .

At paras 63 and 64, the SCC described defence delay in the following terms: The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay,

which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generallydismiss such applications and requests the moment it becomes apparent they are frivolous. As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence isnot. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which thecourt and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.

This shoulddiscourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course beopen to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [33] While the presiding Justice in CAC might have afforded the Accused a bit more time to consider his options, the inescapablefact remains that because of the withdrawal of his counsel the scheduled trial date was lost and a new one had to be found. The defencewas not ready to proceed.

Moreover, the adjournment was directly caused by Mr. Parent’s decision to file a handwritten Jordanapplication without his counsel’s knowledge and/or against his counsel’s advice. The delay associated with the adjournment is thereforedeductible as delay caused by defence conduct. [34] In the alternative, it could also be characterized as delay due to a discrete exceptional circumstance.

This type of delay hasbeen discussed earlier in relation to the first adjournment. [35] In Cody, the loss of defence counsel due to withdrawal before or during trial was accepted as a discrete exceptionalcircumstance, where defence counsel had been appointed to the Bench: para 49.

The delay caused by the withdrawal was thereforedeductible, after taking into consideration reasonably available measures for the Crown and the system to prioritize the matter andreduce the impact of the event on the Accused: R v Berard, 2020 ABQB at para 35. [36] It follows that even if the withdrawal of counsel had not been precipitated by actions taken by the Accused himself, the delaywould have been deductible under Jordan. [37] It is also clear that following the decision to vacate the trial, the Crown and the Court (with cooperation from new defencecounsel) acted reasonably in finding a new trial date that would reduce the amount of delay, affording this prosecution appropriatepriority.

The Court went so far as to offer trial dates in March of 2021 and then accommodated the mutual availability of counsel inSeptember 2021, shortly after resumption of jury trial sittings following the summer recess. [38] In result the time lost due to the second adjournment must be deducted from the total time to trial in determining whether thepresumptive ceiling has been exceeded. IV. Calculation of Remaining Delay [39] In R v Mamouni, 2017 ABCA 347, our Court of Appeal articulated the five step approach mandated by Jordan as follows: 1.

Calculate the delay from the date of charge to the projected end of the trial, net of defence delay); 2. Determine the presumptive ceiling; 3. Calculate the remaining delay by subtracting delay caused by unforeseeable, discrete events; 4. If the remaining delay is above the presumptive ceiling, determine if the Crown has established that the delay is nonethelessreasonable due to complexity; 5. If the remaining delay is below the presumptive ceiling, determine if the Accused has established that it is nonethelessunreasonable. [40] My findings in respect of Steps 1 to 3, and Step 5 follow. A.

Net Delay calculation [41] The time from the date of charge (February 15, 2018) to the scheduled end of the trial is forty three months, seventeen days.Defence delay amounts to ten months and ten days (not including a minor adjournment requested by the defence in February 2018 toreview disclosure before setting a date for the preliminary inquiry). The delay net of defence delay is thirty three months, ten days. B. Determine presumptive ceiling [42] The presumptive ceiling for a prosecution in the Alberta Court of Queen’s Bench is thirty months.

C. Remaining delay after subtracting delay for discrete exceptional events [ 43 ] The delay caused to date by the Covid-19 pandemic is six months, twenty six days. When this is subtracted from the delay net of defence delay. The remaining delay is twenty six months, nine days. This is over three months below the presumptive ceiling D. Has the Accused established that the delay is nonetheless unreasonable? [ 44 ] In Jordan the SCC found that in rare cases a delay of less than 30 months may still be unreasonable, and constitute a breach of an Accused’s rights under s 11 (

b) of the Charter . [ 45 ] To establish such a breach the Accused must satisfy the Court that he made a sustained effort to expedite the proceedings and that the case took markedly longer than it should have. [ 46 ] I accept that Mr. Parent was eager to have his case proceed to trial and in fact changed lawyers at an early stage in order to take advantage of an early trial date that became available in March of 2020.

Unfortunately, he later negated the opportunity to proceed to trial in the Fall of 2020 by filing a handwritten Jordan application without his counsel’s knowledge or contrary to counsel’s advice. [ 47 ] In any event, it is clear that but for the defence delay and delay due to the Covid-19 pandemic, the trial would not have taken markedly longer than it should have. Twenty six months to bring a very serious charge to trial following a preliminary inquiry is well within reason. [ 48 ] The application is therefore dismissed. Heard on the 20 th day of November, 2020.

Delivered orally on the 15 th day of December, 2020. Dated at the City of Calgary, Alberta this 26 th day of January, 2021. R.A. Neufeld J.C.Q.B.A. Appearances: Shane Parker, Q.C. and Matt Dalidowicz for the Crown Shamsher Kothari for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A. Neufeld

_______________________________________________________ A Publication Ban under s.648(1) has been added to the Judgment.