R v Pettitt, 2021 ABQB 84

Court of Queen’s Bench of Alberta Citation: R v Pettitt, 2021 ABQB 84 Date: 20210204 Docket: 180979379Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Scott Bradley Pettitt Accused 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 By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Reasons for Decision on a s. 11(

b) Charter Application of the Honourable Mr. Justice W.N. Renke _______________________________________________________

[I dismissed the application from the Bench with brief reasons, my written decision to follow.] [ 1 ] Mr. Pettitt faces charges on a 4 count Indictment to be tried before a jury from February 1 to February 12, 2021. [ 2 ] Mr. Pettitt has applied for a judicial stay of proceedings on the basis that his right to be tried within a reasonable time has been violated. Mr. Pettitt relies on s. 11(

b) of the Charter , which provides that “Any person charged with an offence has the right ... to be tried within a reasonable time.” Timeline [ 3 ] The major events in the timeline of the prosecution are as follows. [ 4 ] The Indictment consolidates counts that were originally found on three Informations. (

a) The earliest Information, sworn January 24, 2018 (115P1), concerned the First Complainant (the First Information). (

b) The next Information, sworn June 7, 2018 (427P1), concerned the Second Complainant. (

c) The last Information, sworn June 21, 2018 (503P1), concerned the Third and Fourth Complainants. These Informations were subsequently consolidated in an Information sworn August 16, 2018 (379P1), which was later stayed. [ 5 ] This counts were brought into the Queen’s Bench by a direct Indictment, the Indictment being dated November 1, 2018. [ 6 ] The original trial date was April 20 to May 1, 2020. [ 7 ] The pandemic struck.

In March, 2020, the trial was adjourned pursuant to Master Orders 2 and 3 to criminal appearance court on June 26, 2020. [ 8 ] On June 23, 2020, new trial dates (the current dates) were set for February 1 to 12, 2021. [ 9 ] In September 2020 jury trials resumed in Edmonton. Jordan Analysis (Simplified) [ 10 ] The steps of the Jordan analysis ( R v Jordan , 2016 SCC 27 ) are set out in R v Mamouni , 2017 ABCA 347 at para 54 ; see also R v Coulter , 2016 ONCA 704 at paras 34 to 59 .

This is not a “transitional” case. [ 11 ] For the purposes of this application, the main steps of the analysis are as follows: (1) determine total delay, from the sworn date of the First Information (2) compare the total delay to the “presumptive ceiling” of 30 months from the sworn date (3) determine whether any period of delay caused by “discrete exceptional events” must be subtracted from the total period of delay.

The Crown has not sought a deduction from total delay for “defence delay.” If the remaining delay (total delay - exceptional events delay) still exceeds the presumptive ceiling, the Defence shall have made out the foundation for a stay. Steps 1 and 2: Total Delay and the Presumptive Ceiling [ 12 ] Steps 1 and 2 may be considered together.

Submissions focused on the First Information. [ 13 ] If the trial had proceeded on its original 2020 dates, the last day of trial would have marked 27 months, 7 days from the sworn date of the First Information, falling with the 30 month ceiling. [ 14 ] If the trial proceeds on the new 2021 dates, the last day of trial would mark 36 months, 19 or 22 days from the sworn date of the First Information, a period substantially in excess of the 30 month ceiling. (The difference in the Crown and Defence calculation is immaterial.) Step 3: Discrete Event [ 15 ] The trial was adjourned because of the Covid 19 international pandemic.

Did Covid constitute an event that stopped the Jordan clock from running? If so, for what period or periods? In particular, did any excluded delay end • in September 2020, when jury trials resumed in Edmonton • in January 2021, or

• on February 12, 2021 (the last scheduled trial date)? A. Covid as a Discrete Event [ 16 ] Delay attributed to exceptional circumstances is deducted from total delay. The Crown bears the burden of establishing exceptional circumstances. Jordan states at para 69 that [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. Exceptional circumstances include discrete events and particularly complex cases: at para 71. This case is not particularly complex. Discrete events are “[u]nforeseeable or unavoidable developments [that] can cause cases to quickly go awry, leading to delay:” at para 73. Jordan stated at para 75 that 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. [ 17 ] The Defence conceded that the pandemic was an exceptional event, but did observe that the pandemic was not unforeseeable. It emerged in other jurisdictions before it took hold in Canada.

Further, the Defence contended, the justice system failed to mitigate the effects of the pandemic reasonably, resulting in excessive delay. [ 18 ] I find that the pandemic was an exceptional event. It was unavoidable. It has caused excess death and severe illness. No government was prepared for the pandemic. Institutions across the planet were shut down. The Courts were not spared.

See R v Harker , 2020 ABQB 603 , Kubik J at para 20; R v Loblaws Inc , 2020 ABPC 250 , Fradsham PCJ at para 66; R v Ofiaza , 180360893Q1 (unreported: Calgary QB, November 4, 2020), Ashcroft J at 6.12-22. [ 19 ] Steps had to be taken to make courtrooms safe. New facilities for jury trials had to be leased, to permit social distancing, safe courtroom interactions, and appropriate security. An online platform had to be deployed and debugged for matters that could be dealt with remotely. [ 20 ] The adjournment of jury trials in March 2020 did not freeze the number of jury trials and non-jury trials in the queue.

Like river water accumulating behind a dam, the reservoir of unheard matters comprised not only the matters scheduled for trial over the months when jury trials were not heard, but the new jury and non-jury trials that moving through the system. And the Courts are responsible for more than criminal matters. Family, civil, commercial, and judicial review matters also accumulated. Bail and Chambers matters had to be dealt with. Emergency matters had to be dealt with.

All this at sitting points across the Province. [ 21 ] The Courts did what could be done to get jury trials heard as soon as possible – and did what could be done to have all other litigation matters heard as soon as possible. Some triage and priorization was inevitable (e.g. for in-custody accuseds).

There is no foundation for any claim that the Courts did not resume jury trials at the earliest reasonable opportunity. [ 22 ] The Crown had little ability to influence the speed by which adjourned matters would returned for trial. [ 23 ] I find that the pandemic constituted an exceptional discrete event, supporting deduction from total delay. But what deduction is appropriate? For what period or periods is the pandemic an exceptional discrete event warranting deduction from the total period of delay? B.

Covid and Periods of Delay [ 24 ] There could be no suggestion that period of delay attributable to the pandemic did not last until at least September 2020, when the first jury trials resumed in Edmonton. [ 25 ] The period of delay would extend from April 20, 2020, the first of the original trial dates, until at least September 14, 2020, when the first jury trials resumed. A deduction of less than 5 months, though, would not save the delay of Mr.

Pettitt’s trial from exceeding the 30 month ceiling. [ 26 ] In my opinion, the period of delay attributable to Covid extended past September 14, 2020. [ 27 ] Not all jury trials could be heard starting on the same date. There are not enough courtrooms, not enough Court Clerks, not enough Sheriffs, not enough Jury Officers, not enough judges. And matters besides jury trials have priorities as well. [ 28 ] From September 8 to December 16, 2020, the Court selected 39 juries, 24 in Edmonton. That was a reasonable effort at clearing the backlog.

The time reasonably necessary for clearing the backlog (while dealing with new matters) falls within the exceptional circumstances wrought by the pandemic: see, e.g. R v Walker , 2020 ONSC 8153 , Fowler Byrne J at paras 42-43. [ 29 ] The new trial dates were set by way of pre-booking in June, 2020. The trial was set for February 2021. I understand that Defence counsel was available in January or February 2021.

Nonetheless, the dates were accepted and there was no evidence of opposition to the dates. [ 30 ] In my opinion, the period of delay attributable to Covid extends to the last of the trial dates, February 12, 2021. See Harker at para 23 ; Ofiaza at 8.26-41.

C. Total Unavoidable Delay Deductible from Total Delay [ 31 ] The total delay attributable to the pandemic relevant to this trial runs from April 20, 2020 to February 12, 2021. That amounts to 9 months, 23 days. When that amount is deducted from the total delay, the total delay is less than 30 months (about 27 months). [ 32 ] The time-to-trial for this matter is not presumptively unreasonable. [ 33 ] The Defence contended that, regardless, the delay involved in getting the matters to trial was unreasonable. I reject that argument. [ 34 ] The matter was originally set for trial near but within the Jordan ceiling.

No Jordan application was brought before the onset of the pandemic. The only reason for delay in resuming the trial since it was adjourned has been the pandemic and the impact of the pandemic on Court operations. Mr. Pettitt has been subject to the same sort of delay for the same reasons as all other individuals who were in the system when the pandemic struck. The delay from the original trial dates is not unreasonable. It was unavoidable. [ 35 ] The Jordan application is dismissed. Heard and Decided on the 25 th day of January, 2021. Dated at the City of Edmonton, Alberta this 4 th day of February, 2021. W.N.

Renke J.C.Q.B.A. Appearances: Jonathan Fernandes Crown Counsel for the Crown Gloria Hammermeister Hammermeister Law for the Accused