R. v. Steinkampf, 2023 BCPC 250

Citation: R. v. Steinkampf 2023 BCPC 250 Date: 20231027 File No: 110889-2KC Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JONATHAN TAIT STEINKAMPF BAN ON PUBLICATION -

SECTION 486.4(2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: A. Janse Counsel for the Defendant: L Walker Place of Hearing: Kamloops , B.C. Date of Hearing: September 15, 2023 Date of Judgment: October 27, 2023

I. INTRODUCTION [ 1 ] The applicant was originally charged on April 15, 2021 with a single count of sexual assault spanning a two-year date range, and elected to proceed in Supreme Court. Approximately five weeks before the scheduled Supreme Court trial, Crown amended the indictment. The preferred charge was in relation to the same complainant, but included four counts of sexual assault over a three-year date range. The applicant did not agree to proceed to the scheduled trial on the amended indictment. In the absence of his consent, Crown laid a new information in Provincial Court.

The new process carried a renewed right of election on the new counts, and the applicant elected to proceed by Provincial Court judge. The Provincial Court trial was scheduled for September 2023 but did not proceed. It is now scheduled for December 12 – 15, 2023. [ 2 ] The applicant filed a Charter challenge alleging violations of s. 11(b) (to be tried within a reasonable time) and is requesting as a remedy a stay of proceedings pursuant to s. 24(1) of the Charter . II. ISSUES [ 3 ] In order to decide this application, the issues I must decide are: a.

Does the Jordan clock commence with the first information sworn April 15, 2021, or does it reset with the second information sworn on June 29, 2022? b. Does the Jordan clock stop at the September 2023 trial date, or at the December 2023 trial date? c. What is the total net delay? d. Does the 18-month or the 30-month presumptive ceiling apply? III.

POSITION OF THE PARTIES [ 4 ] Crown and Defence jointly submit that the Jordan clock starts running as of the date of the First Information (April 15, 2021). [ 5 ] Crown submits that the Jordan clock stops as of the second (September 2023) trial date and that the applicant is responsible for a period of delay between April 2023 and September 2023. [ 6 ] The applicant submits that the Jordan clock stops as of the December 2023 trial date, and argues that he has not waived nor caused any delay. [ 7 ] Both counsel agree that if the 18-month ceiling applies, the Jordan clock is surpassed. [ 8 ] Crown acknowledges that, at best, the closest it can get to the 18-month ceiling is 22 months (and that’s only if the Court accepts Crown’s arguments regarding defence delay between the April and September 2023 trial dates).

Otherwise, Crown acknowledges that the calculation is approximately 28 months. [ 9 ] Regardless of whether it is 22 or 28 months, Crown’s overall position is that the 30-month ceiling applies, and that the delay argument is not met. Alternatively, if I find the 18-month ceiling applies, and if I accept Crown’s arguments regarding defence delay, then Crown argues a four-month delay is reasonable and does not require a stay of proceedings, which should only be a last resort. IV.

BACKGROUND [ 10 ] The applicant, Jonathan Steinkempf, is currently charged on Information 110889-2-KC sworn June 29, 2022 (the “Second Information”) with sexual assault of the complainant, J.K. (the “Complainant”).

This is a four count information alleging sexual assaults as follows: Count 1: between January 1, 2018 to November 22, 2020; Count 2: on or about November 23, 2020; Count 3: on or about January 2, 2021; and Count 4: on or about January 7, 2021. [ 11 ] The original information 110889-1 was sworn on April 15, 2021 (the “First Information”), approximately 14.5 months earlier, and alleged a single count of sexual assault against the Complainant from January 1, 2020 to January 31, 2021.

In both instances, Crown elected to proceed by Indictment. [ 12 ] On the First Information, the applicant elected to proceed by Supreme Court Judge and Jury. [ 13 ] The first indictment is dated July 9, 2021 (the “First Indictment”). [ 14 ] On August 31, 2021, a five-day jury trial date was fixed for August 2, 2022. Jury selection was fixed for July 25, 2022. On April 14, 2022, the applicant re-elected for trial in Supreme Court by judge alone.

The five-day trial remained fixed for the judge alone trial, and a pre-trial conference (“PTC”) was scheduled for May 26, 2022. [ 15 ] On October 3, 2021, the file was reassigned from junior Crown to current senior Crown.

[ 16 ] On May 20, 2022, Supreme Court Scheduling wrote to both counsel with a request to reschedule the May 26, 2022 PTC due to a Supreme Court judges conference. Counsel took no issue with the request and the PTC was rescheduled to June 21, 2022. [ 17 ] On June 20, 2022, the day prior to the PTC, Crown provided written notice to the applicant’s former counsel of the need to file a new indictment. Former defence counsel responded by email that he was not in a position to proceed substantively with the June 21, 2022 PTC.

In his email sent 20 June 2022 16:10, he stated: …Either there’s a typo below or we have a problem. The 2018 allegations do not form part of the original time frame on the indictment. This isn’t a direct indictment and my client has not been put to his election on these new counts. Also, think [sic] likely affects our position about s. 276 applications. There’s a lot to absorb and I’m still thinking it through.

Given that this comes at 4 PM on the day prior to the PTC, I suggest the PTC be adjourned so we can sort this out. [ Defence Book of Materials, Tab 16 ] [ 18 ] Counsel then agreed to adjourn the PTC one week to June 28, 2022. [ 19 ] Meanwhile, Crown laid the second indictment dated June 20, 2022 (the “Second Indictment”). [ 20 ] At the June 28, 2022 PTC, the applicant did not consent to proceed to trial on the Second Indictment. Both counsel agreed that in the absence of the applicant’s consent, the proper process necessitated Crown laying a new information, if it chose to do so.

Crown confirmed its intention and the Court then vacated the Supreme Court trial date. [ 21 ] Crown laid the Second Information in Provincial Court on June 29, 2022, and on June 30, 2022 Crown directed a Stay of Proceedings on both the First and Second Indictments. [ 22 ] On July 21, 2022, the applicant exercised his renewed procedural rights on the Second Information and elected to be tried by Provincial Court Judge.

The matter was adjourned to the Judicial Case Manager on September 22, 2022 to fix Provincial Court trial dates and a PTC. [ 23 ] In accordance with defence counsel’s first availability, a four-day trial was scheduled for September 11, 2023. [ 24 ] On September 20, 2022, the applicant gave written notice of an anticipated Jordan application. [ 25 ] The Jordan application was scheduled for May 29, 2023. However, around the same time, former defence counsel was appointed as a Justice of the BC Supreme Court.

The Jordan application was adjourned to August 18, 2023 but did not proceed on that date due to lack of court time. Crown and newly retained defence counsel agreed to use the first day of the September trial for the Jordan application, and the trial of this matter is now re-scheduled for December 12-15, 2023. V.

ISSUES & ANALYSIS Issue #1 - When does the Jordan clock start? [ 26 ] I invited counsel to provide me with further submissions on why they are of the view that the Jordan clock starts with the First Information given the amendments that were made. [ 27 ] In response, the applicant submits that there has been no interruption in the judicial process flowing from the First Information to stop the constitutional clock from running.

The applicant points out that, in fact, there has been an increase in the jeopardy that the applicant faces with the addition of two years of substantive allegations. [ 28 ] The applicant notes the absence of any “gap period” between the two informations, and argues that without any gap the constitutional clock continues to run from the First Information rather than re-start with the laying of the Second Information. [ 29 ] The applicant points out that the same factual allegations that were available to Crown in April 2021 formed the basis for the charges in June 2022.

He argues that it would lead to an unfair result if the Crown were able to benefit from a re-setting of the Jordan clock in circumstances where the newly laid information was only necessary due to Crown oversight in the first place. [ 30 ] Crown agrees that the courts have considered the Jordan clock to commence when the initial information is laid, irrespective of the date of a related indictment. [ 31 ] However, in its supplement submissions, Crown acknowledges that exceptions can arise when, for instance, the replacement information adds further counts and/or complainants.

Crown therefore acknowledges that on this set of facts the door could remain open as to whether the replacement information, followed by a different election by defence, re-starts the Jordan clock. Crown has not been able to locate any cases with a clear answer to that question. [ 32 ] The British Columbia Supreme Court considered a similar issue involving two informations in R v. R.K.K ., 2020 BCSC 45 .

However, unlike the case before me, R.K.K . involved circumstances of a “gap period”; the Crown stayed the first information without any explanation and swore a second information several months later in respect of the same charges that were the subject of the first information. The Court had no evidence regarding why the first charges were stayed, and Crown refused to provide any explanation for either the stay or the laying of the new charges 171 days later.

Crown maintained that because of “prosecutorial discretion” it was not required to explain. [ 33 ] At paragraph 15 of R.K.K ., the Court referenced the Ontario Court of Appeal in R v. Milani , 2014 ONCA 536 . The case of Milani is instructive in identifying when the Jordan clock should start where a proceeding involves more than one Information: [48] There is a caveat, however. There are circumstances in which unilateral state action may control whether or not charges are withdrawn or re-laid.

In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges

were laid as part of the s. 11(

b) analysis. In such circumstances, the person, although not formally charged during the "gap" period,remains subject to the judicial process, and his s. 11(

b) interests will continue to be affected by the knowledge or expectation that furthercharges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurredin R. v. Antoine. [34] In R v. Antoine, (ON CA), [1983] 41 OR (2d) 607 (CA), the Ontario Court of Appeal explained that wherethe formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a newinformation laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(

b) analysisbecause the person remains subject to the judicial process. [35] Relying on Antoine, the court in R.K.K. concluded that the Jordan clock began to run when the first information was sworn asthe accused was presumed to have remained in jeopardy, was presumed to be the subject of ongoing investigation, and was therebyprejudiced. [20] In my view where the Crown stays a charge and thereafter lays an identical or substantially similar charge in respect of the sameconduct, the question of which of the two charges starts the clock running for the purpose of a Jordan analysis depends upon the reasonfor the stay of the first charge.

If the stay takes place in circumstances where the accused reasonably believes that the charge is an at anend, then the Jordan clock does not begin to run until the second charge is laid.

If, however, the circumstances are such that the accusedreasonably understands that he or she remains subject to the very real prospect of new renewed charges, then it only makes sense that theclock begins to run at the time of the first charge. [21] In this case, given the Crown’s position and the complete dearth of evidence regarding what if anything the accused was led tobelieve when the first charges were stayed, the court is in no position to assess whether this six month time period should or should notbe considered as part of the Jordan delay analysis. [22] It is, however, clear that the unexplained stay of the first indictment was a unilateral decision taken by the Crown in which theaccused played no part and could in no way have opposed.

There is no question that the court is entitled to assume that the Crownexercised its discretion in this regard properly and without arbitrary motives. But the question here is not one of impropriety. Rather itis whether the resulting delay should be attributable to the Crown. With respect, I do not agree with the Crown’s position that itsprosecutorial discretion is not engaged in the Jordan analysis.

Given the Crown’s position that it is not prepared to explain its decisions,I find that the six month delay between the stay of the first charges and the swearing of the second information must be attributed to theCrown. [23] The Jordan clock began to run on October 19, 2015 when the first information was sworn… [36] In the applicant’s case, there is no “gap period”, and he has continually been under formal, criminal charge since the firstinformation on April 15, 2021 with no interruption in legal jeopardy or in the judicial process (R v. Kanda, 2021 BCCA 267 at paragraph81).

Moreover, his legal jeopardy is exacerbated by the additional counts on the Second Information. The additional counts allege newdates on which new allegations involving the Complainant are said to have occurred. [37] The Second Information was sworn June 29, 2022. [38] The Indictments derived from the First Information were stayed the day after, on June 30, 2022. Based on this timeline, theApplicant was consistently under charge and subject to jeopardy in respect of the same set of facts since the First Information was laid onApril 15, 2021.

As such, I find the First Information started the Jordan clock. #2 – When does the Jordan clock stop? [39] The applicant argues that the relevant date for calculating delay is December 15, 2023 (the anticipated end of trial date). Crownargues that the relevant date is September 11, 2023 (the last day of the second scheduled trial). [40] It is settled law that the ceiling is determined using the actual or anticipated end of trial. In this case, the trial has not yetoccurred and the anticipated end of trial is December 15, 2023.

As such, I find the Jordan clock stops then. [41] Crown acknowledges that if I find the Jordan clock stops as of the December trial date, then the total delay is 974 days. #3 – What is the total net delay? [42] The next step in the Jordan framework requires me to subtract defence delay from the total delay to get the total net delay. [43] Crown argues that the period between April 2023 (the first Provincial Court trial date when both Crown and the Court wereavailable but defence was not) and September 2023 (defence counsel’s first available date for a Provincial Court trial) ought to beattributed as defence delay.

Crown argues that the applicant’s lawyer waived this period of delay at the October 21, 2022 PTC. [44] The applicant, on the other hand, argues there was no defence-waived delay at the October PTC or at any other time, and furtherargues that there is no illegitimate defence-caused delay. [45] I have read the transcript from the October 21, 2022 PTC [Defence Book of Materials, Tab 26].

Although the Court noted formerdefence counsel’s unavailability until September 2023 on the record, as requested by Crown, I cannot find any comments or suggestionby the Court that former defence counsel’s unavailability would or should be characterized as defence delay in these circumstances. [46] In further support of its position, the applicant relies on R v. Cootes, 2018 BCSC 1486. In Cootes, Mr.

Justice Punnett upheldthe trial judge’s decision not to assign a period of delay as “defence delay” in which Court and Crown were available but counsel for theapplicant was not given that previous trial dates had been agreed upon and set but were subsequently vacated. New dates had to be

recanvassed, resulting in the Jordan clock exceeding the 18-month presumptive ceiling. [47] In his decision, Punnett J. declined to assign any defence delay from the adjournment of the original trial dates to the earliestdates when both parties and the Court were available because “[t]here is no indication that the lack of availability of defence counsel wasanything but legitimate” [at paragraph 44]. [48] Although the circumstances in Cootes are not identical, in this case previous trial dates had also been agreed to and set, albeit inSupreme Court, and by all accounts, the Supreme Court trial would have gone ahead and concluded within the applicable 30-monthceiling had Crown proceeded on the First Indictment.

Crown’s decision to prefer the Second Indictment was the catalyst behind thattrial not proceeding. That decision disrupted the judicial process and by consent, the Court vacated the Supreme Court trial dates. [49] When dates had to be recanvassed in Provincial Court, former defence counsel provided available dates that were approximatelya year out. According to the timeline, that appears to be no different from what occurred when the parties originally canvassed SupremeCourt trial dates in August 2021 and fixed an August 2022 trial date.

In other words, there is no indication that former defence counsel’slack of availability for a second trial date was anything but legitimate. [50] In these circumstances, I find it inappropriate to attribute defence delay to the period between April 2023 and September 2023given that new dates had to be recanvassed solely as a result of Crown’s decision to amend the charge approval process. [51] As such, the net delay is also 974 days. # 4 –Which ceiling applies? [52] Counsel acknowledge that exceptional circumstances could account for 91 days as a result of former defence counsel’s judicialappointment, and Crown noted at the outset of submissions that it does not plan to nit-pick on a day here and a day there.

Even withexceptional circumstances accounted for, Crown still acknowledges that the closest it can get to 18 months is 22 months provided Iaccept that the period between April 2023 and September 2023 is defence delay. Otherwise, Crown acknowledges that thepresumptively unreasonable delay is closer to 28 months. [53] Regardless of whether it is 22 or 28 months, Crown argues that the applicant ought to be held to the original 30-month ceiling.

Specifically, Crown argues that the matter could have proceeded to trial in August 2022 in Supreme Court because the amendmentswere procedural only, they involved no new witnesses and no new disclosure, and because Crown gave actual notice of the “relativelyminor amendments” to former defence counsel as early as May 2022 during a phone call. [54] In regard to this last point, Crown submits that she had phone discussions (which she did not document), with former defencecounsel prior to the PTC, and to the best of her memory sometime in May.

Crown says that during that phone call former defencecounsel made a comment to the effect that in some sense Crown’s proposed amendment would simplify the trial as it would eliminatethe need for defence to make a s. 276 application. [55] As a result of that phone call, Crown argues that, at best, defence counsel had nine weeks and five days verbal notice of theproposed amendment. Crown says that would have left ample time for seasoned defence counsel to properly prepare the defence case.

Crown says that it would even have been open to an adjournment of the trial, had one been requested. [56] In the absence of any effort by the applicant to seek an adjournment, Crown alleges that when the Second Information broughtthe matter back to Provincial Court, the applicant elected B.C. Provincial Court intentionally with the goal of creating a delay argument.

Crown is of the view that the new election was a legitimate tactic exercised by former senior defence counsel with many years ofexperience; a tactic done intentionally to change the presumptive 30-month ceiling to an 18-month ceiling almost 15 months after theJordan clock began.

Such tactics, Crown argues, is not in keeping with the Charter. [57] Crown concludes that allowing the 18-month ceiling to apply in this case would be akin to allowing the applicant to use theCharter as a sword, and not a shield. [58] The applicant maintains that the charge amendments changed his jeopardy significantly, and Crown unequivocally concedesthere was a change in jeopardy. Accordingly, the applicant says that any arguments regarding adjournments requests are moot becauseby law the applicant was not required to consent to proceed on the amended indictment. I find this argument to have merit.

It was theapplicant’s legal right to decline to proceed on the amended charges, and he declined to proceed. The fact that he exercised his legalright should not, in my view, be held against him. [59] The applicant’s argument with respect to the applicable ceiling is simple: he submits that the Crown’s decision to lay a newinformation led the applicant to have a right to a new election. The new election was for the matter to proceed in Provincial Court, andtherefore the 18-month ceiling applies. [60] In the absence of any cases directly on point, I will start my analysis with R v.

Jordan, 2016 SCC 27 , [2016] SCC 27,[2016] 1 SCR 631 (SCC). In Jordan, the Supreme Court of Canada set out specific guidelines for delay depending on upon the court inwhich the trial occurred: Below, we set out a new framework for applying s. 11(b).

At the centre of this new framework is a presumptive ceiling on the time itshould take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases goingto trial in the superior court. [at paragraph 5] [61] The Court reiterated this guideline at paragraph 46: At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to

trial in the provincial court after a preliminary inquiry). [ 62 ] In considering which ceiling ought to apply, the applicant also relies on the “bright-line” approach discussed in both R v. Wookey , 2021 ONCA 68 and R v. Shaikh , 2019 ONCA 895 . Both cases dealt with accused who re-elected under s. 561(1) to have their trial in the Ontario Court of Justice and the question arose as to which presumptive ceiling applied.

The court in Wookey adopted the approach set out in Shaikh ; that is, once the accused re-elects down there is no room for further inquiry as to whether the 30-month ceiling applies, and the Jordan framework is not to be applied on a case-by-case basis.

In finding that the 18-month ceiling applied, the Ontario Court of Appeal referred to Paciocco J.A.’s comments in Shaikh wherein the Court rejected a “case-by-case approach” in determining which Jordan ceiling applies and stated that it would grate against the objective of Jordan to evaluate presumptive ceilings on a case-by-case basis [at paragraph 54]. [ 63 ] The Court of Appeal in Wookey pointed out that the appellant was not asked, nor did he offer, to waive his s. 11(

b) rights in exchange for Crown’s consent to the re-election. This was the case even though counsel for the appellant had flagged unreasonable delay as an issue months earlier.

In finding that the 18-month ceiling applied, the Court of Appeal concluded that the Crown did not implement a strategy to mitigate foreseeable delay as the proceedings progressed, despite having the opportunity to do so, and concluded that the re-election did not prejudice the Crown because it could have withheld its consent to re-elect under s. 561(1) but it did not. [ 64 ] Similarly, at paragraph 57 of Shaikh , the Court held: … Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by provincial court judge. Where re-election would create the risk of s. 11(

b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(

b) waiver. [ 65 ] In R v. Teeti , 2018 ABPC 207 , the Court considered which ceiling applies when an accused re-elects down in situations where Crown proceeds by way of direct indictment. Although the case is not binding on our Court, it is informative. At paragraph 13, the Court refers to the Manitoba Court of Appeal in R v. Schenkels , 2017 MBCA 62 : [13] In my view, Jordan is clear. The presumptive ceiling is 18 months for a trial in the provincial court. Where a trial occurs in the superior court, the presumptive ceiling is 30 months.

The only exception is for a trial in the provincial court after a preliminary hearing. In that exceptional case, the presumptive ceiling is 30 months. Moldaver, Karakatsanis and Brown JJ did not differentiate between trials in the superior court preceded by a preliminary inquiry and those that are not, as they did for the provincial court. Furthermore, I see no basis in their reasons to conclude otherwise.

They stated that the presumptive ceilings were “18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in superior court (or cases going to trial in the provincial court after a preliminary inquiry)”(at paragraph 46). Other references in their reasons to the presumptive ceilings are equally clear that the presumptive ceiling is based on the court in which the trial occurs, subject to the one exception for a trial in the provincial court after a preliminary inquiry.

See paragraphs 5, 49, 57, 82, 105. [Emphasis added] [ 66 ] The Court in Teeti went on at paragraphs 15 to 16 to state: [15] In my view, that is a correct statement of the law. In this case, there has been no preliminary inquiry and the trial was to have occurred in Provincial Court. The 18-month ceiling applies. [16] In my view it is contrary to Jordan to allow a 30-month ceiling for a trial not conducted in the superior court where there has been no preliminary inquiry. To do so would thwart the Jordan guidelines.

Where, as here, no preliminary inquiry was held, nor waived, and a direct indictment filed by the Crown – who then consented to a re-election to trial in the Provincial Court the law is clear and cannot import the 30-month superior court ceiling into a trial in Provincial Court. [ 67 ] In the applicant’s case, Crown’s consent was not required before the applicant elected Provincial court judge, and Crown still maintained an opportunity to assess risk of s. 11(

b) problems while the matter was still set for trial in Supreme Court. [ 68 ] For instance, Crown could have assessed risk at the Supreme Court PTC on June 21, 2022, but it did not appear to turn its mind to the potential of changed ceiling. Quoting from Crown [ Defence Book of Materials, Tab 18, page 1, lines 44 – 47, and page 2, lines 1- 26 ]: CNLS A. JANSE: …There’s two options. If – if he is agreeable and continues his election of judge alone on the new indictment, then we can simply proceed on the date of trial.

If he would like the right to election on the new preferred indictment, then I can lay a replacement information in Provincial Court. We can try to preserve our current dates, assuming that his election doesn’t change, or we can adjourn or cancel these dates and start over in Provincial Court. I did not – and I apologize, it’s entirely Crown’s fault. I did not notice these – the discrepancies until I did my deep dive, having taken over this Case from another Crown.

My detailed review yesterday, I noticed these anomalies and corrected the indictment accordingly… [ 69 ] I pause here to point out Crown’s comment that she noticed anomalies “yesterday”. This does not reconcile with Crown’s submissions that she brought the anomalies to defence counsel’s attention a month earlier in May 2022 through an undocumented phone call. [ 70 ] At page 2, line 17, Crown then went on to say: …If my friend requires more time, that’s entirely reasonable and any delay accruing from that would be at the feet of the Crown.

I can tell the court that this matter is not overly dated for an indictable matter…We’re at 347 days…And so, given that we have a 30 month

ceiling and there’s no right to a prelim, I—I think we’re still in good standing to complete long before the Jordan ceiling. [ 71 ] In response to those comments, former defence counsel pointed out his concerns regarding the implications of the amendments. In doing so, he noted that if it was Crown’s intention to proceed on the new indictment, his client would have a new right to elect and he did not know what his client’s instructions would be in that regard.

He noted they would now be looking at a significantly changed body of evidence both in direct examination and in cross-examination that could impact the original trial estimate, and he required additional time to think through all of the implications and discuss them with his client. [ 72 ] Crown had a further opportunity to consider implications as well at the June 28, 2022 PTC.

At that time, Defence counsel explicitly stated that if Crown chose to lay a new C information in Provincial Court, the process would start all over again, and “Provincial Court Judge is the possibility” [ Defence Book of Materials, Tab 19, Page 2, lines 6 – 12 ]. [ 73 ] Crown responded [at lines 22-26]: CNSL A. JANSE …my friend is correct and I agree that it is his right to the election process on a new count. As such, I have laid a C-2 information in Provincial Court to essentially restart the process and that is being sworn and call-dated this Thursday, but – THE COURT: Okay.

That effectively means that as of Thursday this will no longer be a matter extant before this Court? CNSL A. JANSE: Yes. Once we get [indiscernible/sound cuts out] I intend to stay this matter – this information, I should say. [ 74 ] Crown goes on to say [page 3, line 23]: CNSL A. JANSE: Yes. And I wonder if we could perhaps cancel the trial dates now, just so that Madam Trial Coordinator might be able to reuse them on something else? [ 75 ] The Court then asked a few further questions to clarify that the Supreme Court dates could, in fact, be vacated.

Counsel agreed they could be, and the Court vacated them. [ 76 ] There was no further discussion about potential delay issues or a changed presumptive ceiling, and it does not appear that Crown turned its mind to those issues until after the parties began canvassing trial dates in Provincial Court. Quoting from Crown at the October 21, 2022 PTC in Provincial Court [ Defence Book of Materials , Tab 26, Page 1, lines 39-46]: CNSL A. JANSE: ….In September 2023, it will be 28 months old. The Crown has proceeded by indictment, however Mr. Smith has elected Provincial Court judge alone, and I understand that means the

summary Jordan ceiling dates apply. I did not understand the --- that at the time when we had our pre-trial conference prior to the fix date. [ 77 ] In hindsight, Crown says it could have exercised other options: it could have considered a Direct Indictment; or It could have proceeded to the August 2022 Supreme Court trial on the First Indictment and, once all of the evidence was in, asked the Supreme Court to amend the count in the First Indictment to conform to the evidence at trial. [ 78 ] These circumstances are indeed an anomaly.

While I appreciate that Crown feels it was caught off guard by a changed ceiling, and while I acknowledge that any delay was unintended, the reality is that Crown made a tactical decision to amend the charges in a matter that could, and did, have a significant impact on the judicial process.

Crown did so on the eve of the Supreme Court PTC without a strategy to minimize delay and in the absence of turning its mind to a host of foreseeable delay issues. [ 79 ] Those foreseeable issues included the possibility that the applicant might not consent to proceed on the Second Indictment, that the applicant was not required to consent, that his refusal to consent would require a new information, that the new information would give rise to a new process and renewed election rights, and that renewed election rights would give rise to the need to recanvas trial dates with busy, senior defence counsel in Provincial Court where the 18-month presumptive ceiling applies.

VI. CONCLUSION [ 80 ] Without or without exceptional circumstances, the net delay well exceeds the 18-month ceiling set out by the Supreme Court of Canada in Jordan for trials in Provincial Court. [ 81 ] As a result, I direct a stay of proceedings. I wish to thank counsel for their extremely thorough submissions and supplemental submissions. _____________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia