R. v. Harris, 2017 BCSC 1091

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Harris, 2017 BCSC 1091 Date: 20170502 Docket: 81600-4 Registry: Kelowna Regina v. Shelden Durno Harris Tyson Nicholas Still Before: The Honourable Madam Justice Gray Oral Ruling on Delay Application Re Accused Harris Counsel for the Crown: C. BurnettCounsel for the Accused Shelden D. Harris: P.C. ArmourCounsel for the Accused Tyson N. Still: D.B. JohnsonPlace and Date of Hearing: Kelowna, B.C. May 1, 2017Place and Date of Judgment: Kelowna, B.C. May 2, 2017 [1] THE COURT: These are my reasons for judgment on Mr. Harris' delay application. [2] Mr.

Harris has applied for a stay of proceedings on the basis that there has been unreasonable delay in proceeding with thecharges against him. He relies on s. 11(

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. [3] Mr. Harris stands charged by indictment of five charges of possession of a controlled substance for the purpose of trafficking.All five charges allege that the particular offence was committed in Kelowna, B.C., from on or about October 9, 2014, to October 10,2014.

Each count refers to a different drug, being cocaine in Count 1, heroin in Count 2, methamphetamine in Count 3, a drug known asTFMPP in Count 4, and cannabis resin in Count 5. [4] The trial was scheduled to commence yesterday, May 1, 2017, and it began with this application. The trial has been set for fivedays. The hearing of the application proceeded for about three-and-a-half hours of argument. The evidence on the application consistedof Mr. Harris' affidavit sworn May 1, 2017.

I was also provided with transcripts from many of the court appearances in this matter and ofsome reasons for judgment, and counsel agreed about many of the relevant events. [5] This is a case which was underway on July 8, 2016, when the Supreme Court of Canada released its decision in R. v. Jordan,2016 SCC 27. I will refer to it simply as "Jordan”. That decision changed the law regarding s. 11(

b) of the Charter. [6] The ultimate or legal burden of proof is on an accused person to demonstrate a breach of s. 11(

b) of the Charter on a balance ofprobabilities. That is set out in the case of R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at 788. [7] I turn first to s. 11(

b) of the Charter and the overall framework from Jordan.

Section 11(

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

b) to be tried within a reasonable time … [8] The majority of the Court in Jordan explained the interests engaged by the right to be tried within a reasonable time inparagraph 20 as follows: [20] Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptivelyinnocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engagedbecause a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the communityunder release conditions.

Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, andstigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accusedwill be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence. [9] Jordan sets out a presumptive ceiling for the amount of time that a criminal proceeding should take. The presumptive ceiling

for cases in this court is 30 months. Jordan also discusses how to analyze the situation if an accused person asserts, as Mr. Harris does in the alternative, that the time the case has taken or will take is unreasonable even though it is less than the presumptive ceiling. [ 10 ] Here, the Crown did not argue that there was delay attributable to or waived by the defence. Neither did the Crown argue that there were transitional exceptional circumstances, including delay justified based on the Crown's reasonable reliance of the law as it existed before Jordan .

As a result, I will summarize the applicable law omitting reference to those complications. [ 11 ] The overall framework is summarized in R. v. Singh , 2016 BCCA 427 . I will simply read paragraphs 12 to 14, 16, and 17, which are relatively brief: [12] At the core of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling for superior court trials is 30 months.

If the total time from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. [13] The presumption can be rebutted if the Crown can establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and the charges must be stayed (paras. 46−47). [14] Applying the framework begins with calculating the total elapsed time from the date of the charge to the actual or anticipated end of trial. Any delays attributable to the defence must be subtracted.

The defence should not be allowed to benefit from its own delay- causing conduct (para. 60). I am omitting paragraph 15 because it refers to defence delay, which is not an issue here. [16] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing the delay is reasonable because of exceptional circumstances (para. 68). [17] Exceptional circumstances lie outside the control of the Crown in the sense that (1) they are reasonably unforeseen and reasonably unavoidable; and

(2) Crown counsel cannot reasonably remedy delays emanating from those circumstances once they arise. So long as they meet this definition, the circumstances will be considered exceptional. They need not be rare or entirely uncommon (para. 69). [ 12 ] I will now read from the reasons for judgment of Justices Moldaver, Karakatsanis, and Brown in the Jordan decision relating to cases which fall below the presumptive ceiling. First, paragraphs 82 and 83: [82] A delay may be unreasonable even if it falls below the presumptive ceiling.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

Absent these two factors, the s. 11(

b) application must fail. [83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin , as well as the inherent needs and the increased complexity of most cases. [ 13 ] I will also read paragraph 99: [99] The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling.

For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision.

However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial ( Morin , at p. 802). [ 14 ] As a result, the questions in this case can be summarized as follows:

a) First, has the relevant period, properly calculated, exceeded the presumptive ceiling of 30 months for cases in this court? This requires consideration of whether the relevant period commenced on October 10, 2014, being the date that Mr. Harris was arrested and gave an Undertaking, or on December 12, 2014, being the date that the Information charging Mr. Harris was sworn.

b) Second, if the period properly calculated exceeds 30 months, has the Crown rebutted the presumption of unreasonableness on the basis of exceptional circumstances?

c) Third, if the period properly calculated is less than 30 months, has Mr. Harris established that there has been unreasonable delay? [ 15 ] The trial is scheduled to complete this Friday, being May 5, 2017. If the relevant period begins on October 10, 2014, and ends on May 5, 2017, that will be a period of 30 months and 25 days. If the relevant period begins on December 12, 2014, that will be a period of 28 months and 23 days. [ 16 ] I turn now to provide a chronology of relevant facts or potentially relevant facts. [ 17 ] In late 2014, the RCMP received some information suggesting that a Mr. Schiller was involved in trafficking drugs. The RCMP

conducted surveillance on Mr. Schiller and obtained a tracking warrant for his vehicle. [ 18 ] This led the RCMP to two residences, one of which was occupied by Mr. Schiller and the other by Mr. Harris. [ 19 ] In the evening hours of October 9, 2014, based on reports by a surveillance officer, the RCMP suspected that four people were packaging illegal drugs in Mr. Harris' home. The RCMP took steps to seek a warrant to search the residences of both Mr. Schiller and Mr. Harris. [ 20 ] In fact, the RCMP obtained such a warrant. While that was in process, early on October 10, 2014, the RCMP arrested Mr. Harris.

When they had the search warrants, they searched his residence and a vehicle parked in his garage, and they allege that they found illegal drugs there. [ 21 ] The RCMP took copies of Mr. Harris' fingerprints and seized Mr. Harris’ passport, his DVD surveillance equipment, and several vehicles. [ 22 ] The RCMP released Mr. Harris after he signed a Promise to Appear and an Undertaking. The Promise to Appear includes the statement by Mr. Harris that, "I understand that it is alleged that I have committed the following offences" followed by a list of four offences. They are four of the offences charged.

The offence in the Indictment which is not referred to in the Promise to Appear is the offence relating to the drug known as TFMPP. [ 23 ] The Promise to Appear also included Mr. Harris' Promise to Appear at Provincial Court on December 15, 2014, and set out that Mr. Harris understood that failure to comply with the Promise to Appear is an offence under the Criminal Code , R.S.C., 1985, c. C-46. [ 24 ] The Undertaking also includes Mr. Harris' statement that he understands that it is alleged he has committed four counts of possession of controlled substances for the purpose of trafficking.

It includes a number of other undertakings. Mr. Harris undertook to notify Corporal Meyers of the RCMP of any change in his address, employment, or occupation. Mr. Harris also undertook to abstain from communicating with Mr. Schiller or going to an address (which I assume is Mr. Schiller's home address), and from possessing a firearm. Mr. Harris undertook to surrender firearms and documents for possession or acquisition of firearms. He undertook to report to a bail supervisor on or before October 15, 2014, and thereafter as directed.

Finally, he undertook to carry a copy of his release documents and present them to a police officer upon request. [ 25 ] Mr. Harris’ evidence is that he retained a lawyer as soon as he could after that. [ 26 ] On October 22, 2014, being within two weeks of his arrest, Mr. Harris' lawyer advised Crown that he was acting for Mr. Harris and asked that Crown provide disclosure. [ 27 ] About a month later, on November 25, 2014, Mr. Harris' lawyer wrote the Crown seeking return of seized items. [ 28 ] Charges were laid against Mr. Harris on December 12, 2014, by the swearing of an Information.

I was not shown the Information, but I assume that it refers to at least four of the counts on the present five-count indictment. [ 29 ] The first court appearance was on December 15, 2014, the date set out in the Promise to Appear. [ 30 ] There were a series of adjournments. It is not necessary for me to detail them all. [ 31 ] An Information was laid on March 12, 2015, this time charging Messrs. Schiller and Still and Ms. Diehl. I assume this Information alleges counts similar to the five counts against Mr. Harris. [ 32 ] On July 20, 2015, the four accused, of course including Mr.

Harris, elected trial by judge alone in this court with a preliminary inquiry. [ 33 ] The preliminary inquiry commenced on January 5, 2016. Mr. Still did not attend. [ 34 ] The following day, January 6, 2016, all four accused were committed to stand trial on all counts. [ 35 ] On February 15, 2016, a five-day trial was scheduled for November 14, 2016. This was the earliest date available for all four accused, the court, and Crown witnesses.

A pretrial conference was scheduled for October 4, 2016. [ 36 ] Shortly after the setting of the trial date, Crown counsel learned that an intended witness, Sergeant McMillan, was not available for the scheduled trial dates starting November 14, 2016.

The Crown intended to call Sergeant McMillan as an expert witness to give an opinion on whether the drugs in the quantity and form in which they were allegedly found were likely possessed for the purpose of trafficking. [ 37 ] Around the same time, Crown counsel contacted counsel for the four accused, advising that Sergeant McMillan was not available for the scheduled trial date and suggesting that the four accused admit the truth of Sergeant McMillan's opinion.

Counsel for all four accused did so through correspondence rather than through a written admission in the form set out in the Criminal Code . [ 38 ] About six months later, at the pretrial conference of October 4, 2016, Ms. Diehl terminated her counsel's retainer. Mr. Schiller did not attend and his previous lawyer was no longer counsel. Mr. Harris sought and obtained an order for disclosure by Crown of reports relating to the Information to Obtain a Search Warrant (“ITO”). The pretrial conference was adjourned to October 25, 2016. [ 39 ] At the pretrial conference on October 25, 2016, Ms. Diehl and Mr.

Schiller advised that they were not prepared to admit the truth of Sergeant McMillan's evidence. The pretrial conference was further adjourned to October 31, 2016, to ascertain the status of any adjournment applications.

[40] On October 31, 2016, the Crown applied to adjourn the trial, primarily owing to the unavailability of Sergeant McMillan for thetrial date. Mr. Schiller, representing himself, also stated that he wished to adjourn the trial. Ms. Diehl, representing herself, also statedthat she wished to adjourn the trial. She prepared and filed some documentation regarding that. The lawyer for Mr. Harris stated that Mr.Harris did not take any position on the Crown's adjournment application, but Mr. Harris was not waiving any delay. [41] Mr.

Justice Betton granted the adjournment application and the matter was put over to November 21, 2016, to fix a date. Mr.Justice Betton’s reasons for judgment are a brief three paragraphs. I am going to read them into the record: [1] Well, in all of the circumstances, and I will just recap so that it is clear, in the event that there is ultimately a review of the recordof how the matter progressed insofar as my involvement is concerned. The matter came on last week as I recall, and at that time Mr.Schiller appeared without counsel.

There had been, as I recall, a warrant issued for him on the last date when he did not appear. Hiscircumstance is such that he had counsel at one point in time. That ended some time ago and he was to appear on his own behalf. He didnot. A warrant was issued, and then he was subsequently released and appeared last week. Last week he indicated that, for his part, hewanted to adjourn the matter so that he could make efforts to acquire other counsel.

He was directed to formalize an application toadjourn, such that the court would have the benefit of understanding what the prospects were for him to get counsel and whether anadjournment would change his circumstance or not. No application was filed by him, but he has reiterated today his request that thematter be adjourned. [2] Ms. Diehl is in a somewhat similar circumstance. She, however, has filed an application to adjourn supported by an affidavit. Thehistory is such that when both Mr. Schiller and Ms.

Diehl had counsel, Crown had spoken with those counsel with regard to an admissionregarding expert evidence that the Crown seeks to rely on. There was an agreement by counsel on behalf of those accused that the expertwitness would not have to testify and the Crown would be able to rely on a report. Since they are no longer represented, they haveindicated, as I understand it, they are no longer prepared to make those admissions. That witness is not available for the trial and that hasin turn prompted the Crown to make an application to adjourn.

The Crown has one other witness problem, but had advised here that ifthat latter problem were the only one, they would likely proceed; it is really the expert witness issue that dictates they apply to adjourn. [3] Those accused who remain represented have stated that they are taking no position with regard to the applications, but are notwaiving any rights they have to a trial within a reasonable time. In all of the circumstances, I am prepared to adjourn the matter.

I willleave for a hearing judge, if and when an application is brought, to assess all of that history, but I think I have articulated it so there issome record of that. [42] At the hearing on November 21, 2016, Mr. Schiller's new lawyer, Mr. Lynskey, sought disclosure from the Crown and wantedtime to consider what length of time was required for the trial. The Crown is not privy to why Mr. Lynskey was not able to obtain thedisclosure materials from Mr. Schiller's previous lawyer. The fix date was further adjourned to December 5, 2016. [43] Then there was a series of adjournments while Mr.

Lynskey advised he was still arranging to receive disclosure from Mr.Schiller's previous lawyer and he wanted some time.

That resulted in adjournments to December 5 and 12, 2016, and then to January 3,2017. [44] On January 3, 2017, the fix date was further adjourned to January 16, 2017, on the basis that counsel were seeking an eight-daytrial date that would accommodate counsel for all four accused, the Crown, and Crown witnesses. [45] On January 6, 2017, the fix date was further adjourned on the same basis. [46] On January 23, 2017, the Crown advised it had secured a five-day trial date for May 1, 2017, and would be applying forseverance of the charges against Mr. Schiller and Ms. Diehl from the charges against Mr. Harris and Mr.

Still. [47] On January 30, 2017, the Crown's severance application was granted. It had been opposed by Mr. Schiller. Mr. Harris' counselsaid that he took no position on behalf of Mr. Harris and, if it would help Mr. Harris get an earlier trial date, then Mr. Harris was inagreement. The trial date of May 1, 2017, was confirmed for the charges against Messrs. Harris and Still. [48] The present indictment against only Messrs. Harris and Still is dated February 3, 2017. [49] On February 14, 2017, the Crown provided Mr. Harris with the disclosure ordered in October 2016 relating to the ITO. [50] On March 3, 2017, Mr.

Harris filed his notice of application seeking a judicial stay of proceedings on the basis of an allegedbreach of his rights under s. 11(

b) of the Charter. That application was adjourned to the first day of trial. [51] I now turn to analysis. I turn to the first issue: has the period properly calculated exceeded the presumptive ceiling of 30 monthsfor cases in this court? [52] This requires consideration of whether the period relevant to delay commenced on October 10, 2014, being the date that Mr.Harris was arrested and gave an Undertaking and Promise to Appear, or on December 12, 2014, the date that the Information chargingMr. Harris was sworn. [53] The leading case on this issue is R. v.

Kalanj, (SCC), [1989] 1 S.C.R. 1594, which I will refer to as “Kalanj”. Iwill refer to a few passages from the reasons for judgment of Justice McIntyre writing for the majority. [54] First, from pages 1598-99, Justice McIntyre sets out the portion of facts that are relevant to my analysis: The appellants, Kalanj and Pion, were arrested without warrants on May 5, 1982. The police suspected Kalanj of stealing meat from hismeatpacker employer and delivering it to Pion, also in the meat packing business, for sale by Pion and a division of the profits.

Thearrest followed a detailed investigation by the police which commenced in early March of 1982. On March 17, 1982, the police procureda judicial authorization to intercept the private communications of Kalanj and other unknown persons, and proceeded to intercept some

sixty-five communications between March 18, 1982 and May 5, 1982. On the basis of information thus acquired, the police obtained andexecuted search warrants and made the arrests. Following their arrests, the appellants were finger printed and placed in police cells butwere released later the same day. They were told not to leave the city and were informed, as well, that charges would be laid and that asummons would issue. The arrests were made at the appellants' places of business; they received wide publicity and there can be nodoubt that the appellants suffered grave embarrassment.

The trial judge found that prior to being charged, but after arrest and release,both appellants and their families suffered serious trauma and public embarrassment because of these arrests. [55] Next, from pages 1602-03: The word "charged" or "charge" is not one of fixed or unvarying meaning at law. It may be and is used in a variety of ways to describe avariety of events. A person is clearly charged with an offence when a charge is read out to him in court and he is called upon to plead.Many authorities support this view if authority is necessary ...

A person could be considered in a general or popular sense to be chargedwith an offence when informed by one in authority that "you will be summoned to court" or upon an arrest when in answer to a demandto know what all this is about an officer replies: "You are arrested for murder".

There are many other occasions when in the popularmind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada(1988), the word "charge" has no precise meaning at law but merely means that steps are being taken which in the normal course willlead to a criminal prosecution.

However, despite what may be termed the imprecision of the word "charge" or the phrase "a personcharged", the courts are faced with the task of developing a meaning of the word as used in s. 11 of the Charter. [56] Next from pages 1605 and 1606: As has been said, the argument which the appellants have raised on this appeal is that they were charged within the meaning of s. 11(b)on the date of the arrest, which was some eight months prior to the laying of the information. The appellants submit that this Court'sdecisions in Mills v. The Queen, supra, and Carter v.

The Queen, (SCC), [1986] 1 S.C.R. 981, support this proposition.Briefly, the argument is that Lamer J.'s dissent in Mills (concurred in by Dickson C.J.) which extended the meaning of "charged" wasadopted by the majority in Carter. In Mills, Lamer J. expressed the view that the meaning of "charged" should be one which is consistentwith the aim and purpose of the section. In his view, the reasonable time under s. 11(

b) must be computed from the start of theimpairment of the accused's interest in the liberty and security of the person. He therefore considered that a person would be chargedupon: (

a) the service of a summons, the execution of a warrant pursuant to the laying of an information under s. 455.3 of the CriminalCode, or as of the moment a person is informed by the authorities of their existence; or (

b) the issuance of an appearance notice under s. 451 of the Code or release from custody under ss. 452 or 453 of the Code; or (

c) as of the arrest, in the case of all other arrested persons not covered by (

a) or (b). (Mills, supra, at p. 946.) This view did not attract the support or agreement of a majority of the Court. On the same day that the judgment in Mills was released theCourt released the judgment in Carter v.

The Queen. … The appellants submit that since Lamer J.'s reasons in Carter were concurred in by seven judges of this Court, the majority of the Courtadopted the extended definition of "charged" advanced by Lamer J. in Mills. [57] I next turn to pages 1607 and 1608: With all deference to contrary opinions, I am of the view that it cannot be said that this Court in Carter adopted the minority view inMills, on the question of the extension of the meaning of the word "charged" developed by Lamer J.

In Carter, Lamer J., with theagreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, andCarter supports the view that the pre-charge delay is not a factor for consideration under s. 11(b). To this extent, then, I am in agreementwith the above quoted comments of Macfarlane J.A. in Mackintosh but, with respect, I do not agree with the majority in that case that"charged" has a flexible meaning varying with the circumstances of the case.

I would therefore hold that a person is "charged with anoffence" within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a directindictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether aperson has been accorded a trial within a reasonable time under s. 11(

b) will commence with the information or indictment, where noinformation has been laid, and will continue until the completion of the trial … Pre-information delay will not be a factor. This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. … [58] Then on pages 1609-10: The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, areasonable time can be readily made.

Circumstances will differ from case to case and much information gathered in an investigationmust, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for theinvestigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a timelimitation for the institution of criminal proceedings.

Where, however, the investigation reveals evidence which would justify theswearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomespossible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused areprotected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter. [59] There were limitations on Mr. Harris' liberty which arose from his Undertaking and Promise to Appear following his arrest on

October 10, 2014. In addition, the documentation that Mr. Harris was given suggested he was likely to be charged. This engages, to some extent, his interests in liberty and in security of the person, and I have previously quoted from Jordan about those concerns. [ 60 ] Mr. Harris relied on a decision of Judge P.A. Schreck in R. v. Luoma , 2016 ONCJ 670 . That is a decision of the Ontario Court of Justice, which is a provincial court. [ 61 ] In that case, Judge Schreck concluded that the delay should be considered from the time of arrest rather than the later date of the swearing of the Information. The Court concluded that the s. 11(

b) clock starts to tick at the point when an Information is sworn or ought to have been sworn. [ 62 ] Critical to the analysis was s. 505 of the Criminal Code . I will read paragraphs 27, 28 and 29 of that decision: 27 As the majority in Kalanj noted (at para. 21 ), the timing of the swearing of the Information is statutorily controlled by s. 505 of the Criminal Code , which provides as follows: 505. Where (

a) an appearance notice has been issued to an accused under

section 496, or (

b) an accused has been released from custody under

section 497 or 498, an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court. 28 In this case, the police failed to comply with s. 505 .

I cannot accept that the scope of constitutional protection can be potentially diminished because the police fail to do what the Criminal Code requires of them. [ 63 ] Paragraph 28 is followed by a heading. It is subheading (iv), "A Principled Application of Kalanj ”.

I will now read paragraph 29: 29 In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where the investigation has been completed and the accused has been arrested and is subject to the court's process but where the police, in contravention of s. 505 , have simply failed to have an Information sworn due to some administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(

b) clock starts to tick at the point when an Information is sworn or ought to have been sworn . Under this approach, the concerns driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do not arise and the police are not able to artificially manipulate the s. 11(

b) calculus, either intentionally or inadvertently. [ 64 ] There are a number of factual differences between Luoma and Mr. Harris' case. First, in British Columbia, charges are not laid by the police but by the Crown. That is set out in the Crown Counsel Act , R.S.B.C. 1996, c. 87. It provides at s. 2 that the branch, being the Criminal Justice Branch of the Ministry of Attorney General, which I will refer to simply as “Crown Counsel”, has the following functions and responsibilities: (

a) to approve and conduct, on behalf of the Crown, all prosecutions of offences in British Columbia … [ 65 ] As a result, in B.C., there will always be some time required between arrest and charge while the police prepare a report to Crown Counsel and Crown Counsel considers whether to exercise its discretion to commence a prosecution. That was not the case in Luoma . [ 66 ] In addition, in Mr. Harris' case, one would expect that the RCMP needed some time to pursue investigations at least to determine whether the items seized were, in fact, controlled drugs.

This is in contrast to Luoma which was an impaired driving case and where it appears that all the information required for the police to assess whether the police would lay a charge in Ontario had been collected by the time of the arrest. [ 67 ] The Information against Mr. Harris was sworn on December 12, 2014, with the first court appearance on the date set out in the Promise to Appear being December 15, 2014. So there was compliance with that part of s. 505 of the Criminal Code , which was not the case in Luoma . [ 68 ] In Luoma , Judge Schrek concluded that the police had failed to comply with s. 505 .

I am not able to come to that conclusion here. The Information was sworn before the appearance date in the Promise to Appear and the lapse of about two months does not appear unreasonable in light of the need to investigate whether the drugs seized were, in fact, controlled drugs, for the police to advise Crown Counsel of their investigations, and for Crown Counsel to consider whether to commence a prosecution and to do so. [ 69 ] In addition, I am not satisfied that Luoma has properly applied Kalanj .

In Kalanj , as here and as in Luoma , there were limits on the liberty of the accused prior to the laying of the Information. Even so, in Kalanj , the Supreme Court of Canada did not consider the delay period to commence at the time of the arrest. [ 70 ] It may be that the same result could have been achieved in Luoma if the court had analyzed the effect of the police breach of s. 505 of the Criminal Code as impacting on the accused's rights under s. 7 to liberty rather than under s. 11 (

b) regarding delay. [ 71 ] In any event, in this case, Kalanj applies, and the period for consideration of delay commenced on the laying of the Information on December 12, 2014. [ 72 ] Assessing the overall period also requires consideration of when the period should end. Both Crown Counsel and Mr. Harris' counsel argued this case on the basis that the relevant end date was the last day scheduled for trial.

[73] As I discussed in R. v. Millar, 2016 BCSC 1887, the law is not entirely clear on this point. In Jordan, the majority repeatedlyreferred to the period as ending on the "actual or anticipated end of trial’. See, for example, paragraph 47 of Jordan, as follows: [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then thedelay is presumptively unreasonable. … [74] However, the majority included the following as a footnote in paragraph 49: This Court has held that s. 11(

b) applies to sentencing proceedings (R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45).Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reportsare required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no commentabout how this ceiling should apply to s. 11(

b) applications brought after a conviction is entered, or whether additional time should beadded to the ceiling in such cases. [75] In Millar, I concluded that, ordinarily, the period the court should use for comparison with the presumptive ceiling should endwith the date of the anticipated end of trial. I wrote at paragraph 197 that this raised a question of whether the “anticipated end of trial”meant the end of evidence, or the end of oral and written submissions, or the pronouncement of the verdict, or the conclusion ofsentencing.

In any event, in my view and as argued by counsel, the relevant date in this case is the anticipated final day of trial, beingMay 5, 2017. [76] I have concluded that the period for comparison with the presumptive ceiling should begin on December 12, 2014, the date ofthe Information, and continue to May 5, 2017, the anticipated end of the trial. That is a period of about 28 months and 23 days. Thatperiod is less than the presumptive ceiling.

It is only delay beyond the presumptive ceiling of 30 months which is to be consideredpresumptively unreasonable using the analysis required by Jordan. [77] I turn to the second issue.

If the period properly calculated exceeds 30 months, has the Crown rebutted the presumption ofunreasonableness on the basis of exceptional circumstances? [78] In case I am wrong in concluding that the period commenced with the later date of the laying of the Information, I will considerwhether the Crown has rebutted the presumption of unreasonableness on the basis of exceptional circumstances. [79] This relates to the actions of Mr. Schiller and Ms.

Diehl, at a time when they were co-accused, when they became self-represented and suggested they would not agree to the truth of the expert evidence of Sergeant McMillan. [80] I note that the November 2016 trial date was set in February 2016 and, soon after, the Crown sought the admissions.

If anydefendant had declined to make the admissions at that point, Crown probably could have arranged to reschedule the date for a date soonafter November 2016 or taken other steps to accommodate Sergeant McMillan's evidence. [81] The admissions, therefore, were part of trying to make the prosecution proceed quickly. [82] It was not unreasonable for the Crown to rely on defence counsel's assertions that they would make the admissions.

It was notuntil the two co-accused became self-represented and indicated otherwise that it ceased to be reasonable for the Crown to rely on thebelief that the admissions would be made by the defence. That apparently occurred in early October 2016. [83] On October 31, 2016, three parties indicated that they wanted an adjournment, the Crown and both Mr. Schiller and Ms.

Diehl.I read aloud the brief reasons for judgment and, on my reading, the adjournment was not based on simply the Crown application, but alsothe indication of the self-represented accused that they sought time to obtain counsel. [84] Crown argues that this was an exceptional circumstance and I agree. Crown could not have anticipated that those two co-accused would become and remain self-represented and would not agree to the admissions sought.

All Crown could do was seek a newtrial date. [85] Crown did not seek severance until January 30, 2017, being about three months after the two self-represented co-accusedindicated they may not agree to the admissions. When Crown made the severance application, Mr. Schiller opposed it. [86] In my view, it was not unreasonable for the Crown to spend about three months in the hopes of finding a date acceptable to allparties, counsel, and witnesses for all four accused.

The Crown should not move too quickly to seek severance. [87] The severance order was made on January 30, 2017, and on that same day, the trial date was set for about three months later,being May 1, 2017. [88] None of this delay was the result of Mr. Harris' conduct. He wanted the original trial date to proceed. However, it is anexceptional circumstance as discussed in Jordan and as in the quotation I read earlier.

These exceptional circumstances lay outside theCrown's control in the sense that they were reasonably unforeseen or reasonably unavoidable and Crown counsel could not reasonablyremedy the delays emanating from those circumstances once they arose apart from what was done. [89] I consider that the delay goes from the first trial date that was scheduled, being November 14, 2016, to the second scheduleddate of May 1, 2017. That is a period of 5.5 months which I consider to be exceptional on the basis of a discrete exceptionalcircumstance.

As a result, even if I am wrong in the earlier analysis, and the period relevant to delay should commence with the arrest onOctober 10, 2014, the period is still less than the presumptive ceiling. It would be about 25-and-a-half months. [90] I turn to the next issue. If the period properly calculated is less than 30 months, has Mr. Harris established that there has beenunreasonable delay?

[ 91 ] I accept that Mr. Harris has taken all reasonable steps to bring this prosecution to a conclusion in a timely way. The case was underway for about two-and-a-half years before the decision in Jordan and Mr. Harris made a diligent effort to proceed with the charges in a timely way. [ 92 ] However, even if I am wrong to use the date of the Information for the commencement of the period, I would not accept that Mr. Harris has satisfied the second requirement in Jordan relating to periods under the presumptive ceiling.

As I read from paragraph 82, the defence must establish both that "it took meaningful steps that demonstrate a sustained effort to expedite the proceedings”, and that “the case took markedly longer than it reasonably should have." As set out in paragraph 83 of Jordan , the court expected that stays beneath the ceiling would be granted “only in clear cases”. [ 93 ] If the date commenced with the arrest, the delay has been 30 months and 26 days.

That does not “markedly exceed” 30 months, which is the presumptive ceiling. [ 94 ] Overall, the analysis of whether delay has been unreasonable is not just a question of a number alone. This was discussed in paragraph 51 of Jordan as follows: [51] While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling.

Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time.

Contrary to what our colleague Cromwell J. asserts, we do not depart from the concept of reasonableness; we simply adopt a different view of how reasonableness should be assessed. [ 95 ] After considering all these factors, including the discrete exceptional event, I conclude that the anticipated delay in resolving these charges was not an unreasonable delay. [ 96 ] The ultimate or legal burden of proof is on the accused person to establish on the balance of probabilities that there has been a breach of his Charter rights. Mr. Harris has not demonstrated that he was not tried within a reasonable time.

As a result, I am dismissing his application to stay the proceedings against him on the basis of a breach of s. 11(

b) of the Charter . “Gray J.”