R. v. Holland, 2017 BCSC 2606

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Holland, 2017 BCSC 2606 Date: 20171129 Docket: 33443-5; 33443-6 Registry: Williams Lake Regina v. Zsuzsanna Holland Ban on Publication s. 517(1) Criminal Code of Canada Before: The Honourable Mr. Justice Ball Oral Reasons at Bail Review Crown Counsel: J. Dufour Counsel for Accused: J. Turner (via videoconfeence) Place and Date of Hearing: Williams Lake, B.C. November 29, 2017 Place and Date of Judgment: Williams Lake, B.C.

November 29, 2017 [ 1 ] THE COURT: First of all, I wish to say that I am grateful to counsel for their very careful submissions in this case and the care with which they have approached the case law which, as everyone has acknowledged, is somewhat disparate. [ 2 ] In the current case, the application is for a bail review pursuant to s. 525 of the Criminal Code . As I indicated to counsel, on several prior occasions, I have ruled giving a decision favouring ”the two-stage process”, one of those decisions was R. v. Wallace, 2013 BCSC 1706 .

Background [ 3 ] Some historical background is necessary for a meaningful review of the case law. After an initial delay in choosing and changing legal counsel by the accused, on March 4, 2015, the co-accused in this case requested a preliminary inquiry with a trial to follow before a judge and jury. [ 4 ] There was a significant delay to the date scheduled for that preliminary inquiry; being December 14, 2015. I make this comment about delay because from my extensive experience in this jurisdiction, I am satisfied that a preliminary inquiry could have been scheduled in a much shorter period of time.

No reason nor evidence concerning this delay was placed before the Court on this application and it would be inappropriate to speculate. [ 5 ] In any event, a preliminary inquiry was scheduled for December 14, 2015. Ms. Holland did not appear on that date. Apparently, her non-appearance was noted and an adjournment was granted to the accused for another month and a half until January 29, 2016. On December 14, 2015, then counsel for the accused indicated to the court that the matter would be disposed of on the next appearance date, January 29, 2016, meaning a guilty plea.

That reason would obviously lead to a generous granting of an adjournment. However, when the matter came back on January 29, 2016, counsel was no longer on the record and there was a further adjournment requested by the accused to February 17, 2016. No disposition occurred on January 29, 2016. [ 6 ] On February 17, 2016, a further adjournment was requested by the accused, then without counsel, to March 23, 2016. Then on March 23, 2016, a further adjournment was requested by and given to the accused to April 6th, 2016. On April 6th, 2016, again the accused did not appear and a warrant was issued for her arrest.

That warrant was executed on April 9, 2016, in Kamloops, where after arrest the accused was released by order made by a sitting Judicial Justice of the Peace (“JJP”). The JJP directed that the accused obey a reporting condition and that the accused was scheduled to next appear in Williams Lake on April 13, 2016. [ 7 ] On April 13, 2016, the accused failed to appear. A failing to appear charge was laid and a further warrant was issued, but not until April 28, 2016 that warrant was executed; the accused was arrested.

The accused was taken into court through the Kamloops Justice Centre on the next day, April 29, 2016. The outstanding warrants were executed on May 2, 2016 while the accused remained in custody. Ultimately, on June 9, 2017 the present detention order was issued. [ 8 ] After that appearance a trial date was set in the Supreme Court for February 26th, 2018. Obviously, the matter would have

been resolved much earlier had this accused attended court when required to do so. Submissions [ 9 ] Defence counsel initially advanced the use of the one-step process for bail review relying on R. v. Zarkozi , 2010 BCSC 1410 . [ 10 ] Crown relied on several cases including R. v. Whiteside , [2016] BCSC No. 139, a decision of Madam Justice Gropper of this court, where the disparate approaches of this court on bail review were described as settled by the decision in the Supreme Court of Canada in R. v. St-Cloud , 2015 SCC 27 .

Her Ladyship reviews the approaches taken in St-Cloud where it is very clear that a bail review is not a hearing de novo , but a circumscribed inquiry. She notes that that considerations used in St-Cloud are the same as used by Bernard, J. in R. v. Jerace, 2012 BCSC 2007 , which adopts the two stage approach as referred to earlier in these reasons. Gropper, J. was convinced that the approach taken in Jerace was correct. [ 11 ] Mr. Turner referred the court to another recent case which has considered the approach to be taken under s. 525 of the Criminal Code . I refer to the reasons of Mr.

Justice Riley in the R. v. C.L.J.M. case at para. 26, where to the following words appear: As explained above, the reviewing judge always has the discretion, per s. 525(3), to consider "unreasonable delay" on the part of the Crown or the accused, but unreasonable delay is not the sole consideration at the first stage of the analysis, or the sole justification for a review of the basis of the accused's detention.

In a case where the prosecutor has been responsible for "unreasonable delay", the judge may conclude, depending on the nature and reasons for the delay in conjunction with all of the other factors in s. 515(10) , that continued detention is not justified and the accused should be released.

In a case where the accused has been responsible for "unreasonable delay", the judge may decide, depending on the length and reasons for the delay, that the only reason the accused's detention exceeded the prescribed time frame without a trial is because of the accused's delay. [ 12 ] However, from July 2017 to February 2018 in these circumstances is a very brief delay and not one in my view that would attract the definition of unreasonable in any circumstances.

So from the day of the detention order to the present date there has been, in my opinion, no unreasonable delay. [ 13 ] In this case we have no information on why counsel chose the date of February 26, 2018 for a trial. [ 14 ] In my view there has not been an unreasonable delay and in all of those circumstances looking at the issue as set out by my brother, Riley, J. set out in C.L.J.M. , I am satisfied that this is a case where there is no unreasonable delay shown. [ 15 ] In all the circumstances, and having reviewed the applicable case cited above, and pursuant to the decision in Jerace , op. cit., which I also accept as a correct statement of the law, I am satisfied this is a case where the application for a bail review at this stage of the proceedings should be and is dismissed. “Ball J.”