R. v. Jensen, 2020 BCPC 59

Citation: R. v. Jensen 2020 BCPC 59 Date: 20200403 File No: 107199-3 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK LEIF JENSEN and JENNIFER LINDSAY MANUEL and DEVON STEVEN MCCONNELL RULING ON APPLICATION OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: S. Firestone , via teleconference Counsel for the Defendant D.L. Jensen: L. Scruton, via teleconference Counsel for the Defendant J.L. Manuel: J. Jensen, via teleconference Counsel for the Defendant D.S. McConnell: L. Scruton, agent, via teleconference, April 2, 2020; G.

Gagnon, via teleconference, April 3, 2020 Place of Hearing: Kamloops, B.C., via teleconference Date of Hearing: April 2, 2020 Date of Judgment: April 3, 2020 Introduction [ 1 ] Derek Leif Jensen, Jennifer Lindsay Manuel and Devon Steven McConnell are jointly charged with a number of offences

including aggravated assault that allegedly occurred on May 15, 2019. [ 2 ] The charges were sworn shortly after the incident. [ 3 ] Ms Manuel has been in and out of custody on this matter. She is currently out on stringent house-arrest conditions. Mr Jensen was detained shortly after the alleged incident and Mr McConnell is not in custody. [ 4 ] Messrs Jensen and McConnell elected to be tried by a Supreme Court Judge and waived their right to a preliminary inquiry. Ms Manuel made the same election, but as she is entitled to do, requested a preliminary inquiry.

The Crown did not take any position concerning the request. [ 5 ] On September 9, 2019, a two-day preliminary inquiry was fixed and is scheduled to commence on May 5, 2020. [ 6 ] As result of COVID-19, on March 23, Chief Judge Gillespie issued a notice to the profession that all in-custody trials and preliminary inquiries would be adjourned, unless counsel made application to demonstrate the urgency of the matter. [ 7 ] Mr Jensen makes his application to demonstrate urgency on behalf of his client Ms Manuel; Ms Scruton appears on behalf of Messrs Jensen and McConnell.

Neither Mr Jensen nor Mr McConnell applied for a finding of urgency. However, Ms. Scruton says that her client Mr Jensen supports Ms Manuel’s argument, and Mr McConnell takes no position. Ms Firestone, on behalf of the Crown, opposes the application, not so much on urgency, but on the issue of ability to proceed. Issues 1. Who has the onus? 2. What does urgency mean? 3. What factors are relevant in deciding whether this matter is urgent? 4. Is the matter urgent? Analysis 1 . Who has the onus? [ 8 ] The issue before the court is not one that lends itself well to the placement of the onus.

However, my view is the interests of justice are best served if a holistic approach is taken involving consideration of all the factors. 2 . What does urgency mean? [ 9 ] Urgency means something that requires immediate attention or swift action. It is synonymous with critical, emergency, and highest priority. 3 . What factors are relevant in deciding whether this matter is urgent? [ 10 ] The following is a non-exhaustive list of factors to assist in determining whether a matter is urgent: a. The nature of the hearing; b. The accused’s custodial status and whether a bail review is available; c.

Is the case within or outside the Jordan guidelines; d. Will the trial complete in the time allotted; e. Is there a risk of prejudice owing to memories fading, witnesses becoming unavailable, or other types of evidence being lost; f. Is there a risk that counsel or witnesses will become unavailable; g. Is the accused suffering from a condition that will impair his future ability to make full and answer and defence if the matter is adjourned; and h.

Has the accused’s custodial status eclipsed what they would receive as a sentence if convicted? [ 11 ] A consideration not argued, but raised in others by the Crown, is that if the accused is convicted, the accused is liable to a further period of incarceration. In essence, there is no urgency because the accused is likely going to be doing additional time anyway. This is not a factor to be considered because it displaces the presumption of innocence. The potential for a lengthy period of imprisonment is relevant on the tertiary ground at a bail hearing or bail review, but for different reasons. 4 .

Is the matter urgent? [ 12 ] An accused is entitled to a hearing within a reasonable time, not with immediate dispatch and urgency unless there is some demonstrated proof requiring the same. [ 13 ] Ms Manuel is not in custody. However, Mr Jensen argues that because she is on 24-hour house arrest, it is almost the equivalent of being detained in custody. I do not agree.

[ 14 ] Last month Mr Jensen’s argument might have gained some traction, but in the current world of self-isolation it cannot. Ms Manuel’s liberty is about as restricted as the majority of the population of British Columbia. [ 15 ] A preliminary inquiry is not a mandatory proceeding, but one that is being held solely at the request of Ms Manuel. [ 16 ] Mr Jensen is confident that with admissions, the preliminary inquiry could conclude in one day. However, Ms Scruton, who has not received full disclosure yet, is unable to say whether her client would make any admissions.

Further, without reviewing the file, she is not in a position to say whether the matter could conclude in one day. Mr Gagnon, who represents Mr McConnell, was not present for the application and we do not know what his position will be. [ 17 ] In short, although Mr Jensen says it will complete within one day, he represents only one of three accused who will be present for the preliminary inquiry. [ 18 ] The matter is 11 months into the 30-month Jordan ceiling.

There is no real risk of memories fading, witnesses or evidence becoming unavailable. [ 19 ] Although Mr Jensen did not apply for finding, I have considered that there is no indication that the time Mr Jensen has already spent in custody has eclipsed the likely sentence that would be imposed if he were convicted. [ 20 ] Further, because neither Mr Jensen, nor Mr McConnell requested a preliminary inquiry, they could apply - not necessarily be granted - for severance if they felt prejudiced by any delay that an adjournment might cause. [ 21 ] Mr Jensen can also move forward with his mandatory bail review. [ 22 ] Ms Manuel could also seek a review of her bail conditions.

Conclusion [ 23 ] Typically, I view the application as a two-step process. The first is a determination of urgency and the second, a determination as to whether or not a fair inquiry can proceed on the dates scheduled. In the case at hand, counsel were not in a position to propose how the hearing would proceed. Ms Firestone expressed serious doubts that it could. [ 24 ] According to Mr Jensen, identification remains a live issue but that could change for the purposes of the preliminary inquiry.

Ms Scruton was not in a position to say what issues would be live issues for the preliminary inquiry. [ 25 ] Mr Jensen argued that it would be premature to make any type of assessment of whether the hearing could proceed because it is still more than a month away and much could change. [ 26 ] I agree with Ms Firestone’s position that given the direction of the Chief Public Health Officer, that people continue self- isolating until the end of May, any remarkable change concerning how we address the health and safety of the people involved in this proceeding is highly unlikely. [ 27 ] Without a proposed solution I cannot envision how a preliminary inquiry with three accused, several witnesses and exhibits, and the possibility of identification being an issue, could proceed. [ 28 ] After considering all the factors, I am satisfied this matter is not urgent.

The preliminary inquiry is adjourned for 90 days to fix a new date. It will get priority when a new date is fixed. ________________________________ The Honourable Judge G.W. Koturbash Provincial Court of British Columbia