R. v. Perrault Date:, 2017 BCPC 306

Citation: R. v. Perrault Date: 20170927 2017 BCPC 306 File No: 11840-1 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAIGE PERRAULT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: P. Swartz Counsel for the Defendant: S. Gerstel Place of Hearing: Fort St. John , B.C.

Date of Hearing: September 27, 2017 Date of Judgment: September 27, 2017 INTRODUCTION [ 1 ] THE COURT: The Defendant, Paige Perrault, stands charged on Information 11840, with two counts arising from an incident at Bucking Horse River on July 10, 2013, involving allegations of impaired operation of a motor vehicle causing bodily harm. The investigation commenced at the scene and was largely concluded within several months, save and except, for certain experts' reports on

the Defendant's blood alcohol content. [2] Ms. Perrault knew of the investigation as early as July 2013, when she received a search warrant for blood samples taken fromher and hospital records arising from the July 10, 2013 incident. [3] The Crown commenced the proceeding by Indictment on Information sworn November 23, 2015, some 28 months after theincident. This delay, although both unusual and curious, does not directly impact the application before the Court or the decision to berendered. [4] Defence counsel brings an application for relief under s. 11(

b) of the Charter of Rights and Freedoms, which reads, "[a]nyperson charged with an offence has the right ... to be tried within a reasonable time". [5] The application is now also governed by two recent cases from the Supreme Court of Canada, R. v. Jordan, 2016 SCC 27, andR. v. Cody, 2017 SCC 31. In these cases, the Supreme Court of Canada called upon the main participants in the criminal justice system:the Crown, the defence bar and the judiciary, to change the approach and the manner in which criminal cases are conducted andconcluded in Canada. [6] Before Jordan and Cody, applications under s. 11(

b) of the Charter were governed by such cases as R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, R. v. Morin, (SCC), [1992] 1 S.C.R. 771 and R. v. Godin, 2009 SCC 26, [2009] 2S.C.R. 3, as well as a number of provincial appellate decisions. Those cases provided a process to examine from a variety ofperspectives how and why delays occurred in moving a case through the judicial system in order to determine whether or not thedefendant could satisfy the court on a balance of probabilities that their Charter rights under s. 11(

b) had been violated such that ajudicial stay of proceedings should be granted. [7] Although some aspects of Askov, Morin, and Godin have not been directly overruled by Jordan and Cody, the Supreme Courtof Canada has prescribed a new process centred on specific timelines for case completion based on which court the proceeding wascommenced, rather than the nature of the charges or the type or manner of the proceedings. [8] The Information in this matter was sworn on November 23, 2015, and was served on Ms. Perrault for a first appearance date ofJanuary 26, 2016.

This step started the clock running for the purposes of the Jordan analysis. The end point for the time calculation isthe conclusion of the trial for which defence counsel has selected September 29, 2017, the present last scheduled date for the trial of thismatter. [9] Although the Court will utilize that date for the purposes of a decision on this application, there is no assurance that theevidence and submissions would have concluded by that date and that the Court would be in a position to render a decision immediately.

If a decision is not able to be rendered immediately, the case does not conclude until a decision is rendered. [10] The time span from November 23, 2015 to September 29, 2017 is 22 months and six days.

According to Jordan any time, fromthe swearing of an information to the trial conclusion, which is over 18 months is presumptively unreasonable and will require the courtto make certain inquiries as to what should occur in those circumstances. [11] In order to properly consider the submissions of counsel and to arrive at a proper conclusion, it is first necessary to catalogue themany Court appearances and other steps taken by the Crown and defence counsel in their respective roles and to consider their respectiveinterpretations of what conclusions the Court should draw from the steps taken by each party. [12] In that regard, I refer to the document prepared by the Crown outlining the various steps taken in this proceeding.

As I saidearlier, the offence date was July 10, 2013, and the Information was sworn November 23, 2015. In late December 2015, a summons wasserved on Ms. Perrault for a returnable date of January 26, 2016. [13] On January 5, 2016, Ms. Perrault's counsel wrote to the Crown advising that he was acting on her behalf and requesteddisclosure. On January 11, 2016, Mr. Gerstel sent a letter to the registry copying the Crown, enclosing a document commonly referredto as a Counsel Designation Notice.

That Counsel Designation Notice was received by fax at the registry on January 11th, but it couldnot be formally filed until the original arrived by mail because the Fort Nelson Registry is not a fax-filing registry. [14] On January 26, 2016, neither Mr. Gerstel nor his client appeared and the matter was adjourned by the Crown to February 23,2016, with the Crown advising the Court that they would be making enquiries of Mr. Gerstel to find out what had occurred and whynobody had appeared. [15] On February 11, 2016, Mr.

Gerstel sent a second letter to the Crown requesting disclosure, and on February 18th the CounselDesignation Notice was filed by the registry. On February 23rd, Mr. Gerstel's agent appeared and asked that the matter be adjourned toApril 12, 2016, because defence was awaiting disclosure. [16] On February 24, 2016, full disclosure was mailed to defence counsel by the Crown office. Defence counsel categorizes this aslate disclosure. The Crown says it was done immediately after confirming that defence counsel was acting and that a CounselDesignation Notice had been filed. [17] On February 25, 2016, Mr.

Gerstel wrote a letter to the Crown enclosing the filed Counsel Designation Notice. On March 15,2016, Mr. Gerstel wrote to the Crown requesting, for a third time, disclosure. Mr. Gerstel, on behalf of Ms. Perrault, acknowledged thatdisclosure had probably arrived in his office somewhere around March 15th, although he could not confirm exactly when that hadoccurred. [18] Crown counsel suggested that the Court should consider delivery to be seven days after the date of posting of the document inthe mail, referring to the

Interpretation Act. Of course the

Interpretation Act is a provincial statute, the Criminal Code and thedisclosure provisions under R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1995] 1 S.C.R. 754 are federally regulated,

and there is no similar provision for how long things should be taking in the mail in the Criminal Code. [19] On March 15th, the Crown also confirmed to Mr. Gerstel that disclosure had been sent, and on April 12th, a further appearancewas made before the Court. It was adjourned to May 10, 2016, with it being indicated on the record by his agent that Mr. Gerstel had toreview what he described as voluminous disclosure, being a thousand pages or so. [20] On May 10, 2016, the matter was further adjourned to July 26, 2016, at the initiation of defence because, according toMr. Gerstel's agent, Mr.

Gerstel wished to speak to the Crown on a variety of topics, including Charter issues, expert witnesses and thelength of trial. [21] On May 11 through May 19, 2016, various conversations were had with the Crown and defence counsel, and by May 19th,Mr. Gerstel wrote to the Crown asking for their trial estimate. [22] On July 8, 2016, the Jordan decision was rendered by the Supreme Court of Canada. On July 26, 2016, not guilty pleas wereentered and a five-day trial time estimate was placed before the Court.

That trial length estimate being over three days required the Courtto become especially involved in setting the trial because the location of the trial, being Fort Nelson, was such that it could not beaccommodated necessarily in one five-day slot because Fort Nelson is a circuit location that is not served on a weekly basis. [23] Around July 26, 2016, defence counsel had available a long list of dates in order to conduct this trial, starting in January 2017and going through until September 2017, with a total of 14 weeks being available on defence counsel's behalf in order to conclude thetrial. [24] From July 26, 2016 until January 29, 2017, there were a variety of appearances, pretrial conferences and other matters dealt within order to get this trial scheduled.

One of the issues between counsel is who is responsible for this delay. There were steps taken to tryto

schedule a special sitting, or to spread the trial over several various regular sittings of the circuit court.

Requests were made foradditional sitting time to the Regional Administrative Judge, and eventually to the Office of the Chief Judge, and that took severalmonths to arrange. [25] When the trial was fixed, around February 1, 2017, defence counsel accepted the very first date offered by the Court, being thedates of September 25 to 29, 2017. [26] On February 1, 2017, until the commencement of the trial, there were various pretrial conferences scheduled and dealt with byvarious judges, including me, the trial judge, to coordinate and confirm the various applications that might be made as part of the trial,what admissions could be made, and what evidence would need to be called. [27] It should be noted that Fort Nelson is a circuit location of the Provincial Court.

It sits approximately 10 to 14 weeks per year,depending on the needs of the community. It does not sit necessarily every month, and it should be noted that the hiatus betweenMay 10, 2016 and July 26, 2016 was due to the fact that there was no scheduled sitting in Fort Nelson of the Provincial Court in June2016. Case Law [28] Counsel provided the following cases to the Court in support of their submissions in addition to Jordan and Cody:

a) R. v. Baldini, 2012 BCCA 206;

b) R. v. Singh, 2016 BCCA 427;

c) R. v. Truong, 2017 BCSC 736;

d) R. v. Akuma, 2017 BCSC 896;

e) R. v. Matheson, 2017 BCSC 166;

f) R. v. Williams, 2017 BCPC 242;

g) R. v. Morin, (SCC), [1992] 1 S.C.R. 771;

h) R. v. Williamson, 2016 SCC 28;

i) R. v. Singleton, 2010 BCSC 1855; and

j) R. v. Hunt, 2016 NLCA 61 and 2017 SCC 25. Submissions The Defence [29] Defence counsel's submissions can be summarized as follows: (

a) The Jordan decision revamped the test for delay. Anything over 18 months is presumptively unreasonable, and the SupremeCourt of Canada made it clear that they wish to overcome the complacency that had previously been part of the trial scheduling involvingall the parties to the process. (

b) Defence delay:

(

i) Waiver: There was no waiver here on the part of the Defendant. The Defendant diligently went about obtaining counsel and defence counsel diligently went about seeking disclosure. (ii) Conduct: There was no improper or illegitimate conduct on the part of the defence. Defence counsel sought disclosure and wished to discuss the case with the Crown in order to iron out issues and get the proper trial estimate prior to arraigning the matter. (

c) Trial dates: Defence counsel provided many available dates early on, but they were not chosen until an assize was set up by the Court for September 2017. Defence counsel had other available dates as early as January 2017, at the time of the arraignment hearing in July 2016. (

d) Delay: An arraignment hearing from May 10th to July 26th; that delay was not the fault of defence or defence counsel because: (

i) discussions were being held with the Crown to streamline the case; (ii) there was no court in Fort Nelson in June 2016; and (iii) defence counsel was ready to arraign by late May 2016. Such delay between those two dates should be described as institutional delay. (

e) The Provincial Court Practice Directions give a 90-day time frame between the laying of an Information by Indictment and an arraignment hearing, but here that was delayed because of late disclosure, and defence counsel's actions were all part of what was described in previous case -- the defence described all the actions in part of what was described in previous cases as the intake period. (

f) The time from the arraignment hearing of July 26, 2017 until the trial date scheduled on January 29, 2017, is no fault of the defence. They provided many available dates to the Court. (

g) There are no exceptional circumstances available to the Crown here. There is no discrete, unforeseen or unavoidable event, and it is an overly complex case. There were Charter issues and an expert to be called, but that does not make the case complex. (

h) Most of the delay here was institutional, namely from May 2016 to July 2016, from July 2016 to January 2017, and from January 2017 until the trial date. But there is also some delay that can be laid at the feet of the Crown in regards to late disclosure. (

i) The Crown was on notice by the time of the arraignment hearing of July 26, 2016, that new rules applied because the Jordan decision was released on July 8, 2016. However, the Crown did little to move the case forward given the timeline issues. (

j) The older cases referred to and discussed prejudice. An example of what might be prejudice here is the 50 months from the offence date to the trial date. Under Jordan , prejudice must have been a factor, although not discussed in the decision, in the Supreme Court of Canada, arriving at an 18-month time limit. The Crown [ 30 ] The Crown's submissions can be summarized as follows: (

a) Jordan and Cody have not changed the underlying principles surrounding s. 11(

b) applications and a trial within a reasonable time. Steps must be taken for disclosure and to allow for full answer and defence and a fair trial, but it should be done within reasonable timelines. (

b) Jordan does not overrule Morin on the issue of examining regional issues in setting cases. (

c) Jordan talks about things beyond the power and control of the Crown. Morin calls it institutional delay. (

d) Jordan has not changed the need to apportion delay among the defence, the Crown and the court. (

e) The delay from the January 26, 2016 first appearance and the February 23, 2016 appearance should be attributed to the defence because neither the Defendant nor the defence counsel appeared, and there was no formal Counsel Designation Form filed. (

f) On February 18, 2016, a Counsel Designation Form had been filed and on February 23, 2016, a second appearance occurred, but no disclosure had been provided. However, disclosure was forwarded to defence counsel the next day, being February 24, 2016, and there is no need for the Crown to supply disclosure until counsel has been retained and a Counsel Designation Form filed. (

g) The April 12, 2016 appearance and adjournment for review of voluminous disclosure is not an accurate representation. The disclosure was not voluminous, being only approximately a thousand pages, nor was it complex. (

h) The May 10, 2016 adjournment was asked for by defence counsel so that defence could speak to the Crown about admissions, trial logistics, and trial length. That does not prevent the defence from having arraigned the matter on May 10th. It could have been done on that day or it could have been done electronically through a Consent Arraignment Form soon afterwards. Defence counsel sought neither. The delay until the July sitting is the fault of defence, and they should bear the time period for that. (

i) The trial length estimate is more in the purview of defence counsel than it is of the Crown, since defence counsel would know what the total case would take, given that they are the ones to decide whether they will be calling any evidence. (

j) Jordan has not changed the Morin analysis on the urban versus rural or regional differences in concluding appropriate trial delay.

(

k) Jordan does provide a "bright line" of 18 months, but here the defence should bear responsibility for the following periods of delay: (

i) from January 26, 2016 to February 23, 2016 (28 days); (ii) April 12, 2016 to July 26, 2016 (three months and 14 days); (iii) at least a portion of October 28, 2016 to February 1, 2017 until the trial dates were set. (

l) Counsel's failure to obtain transcripts is contrary to the British Columbia Court of Appeal authorities and directions but it may not be fatal in the circumstances of this case. Discussion and Decision [ 31 ] Jordan and Cody have fundamentally changed how the judicial system and its participants: Defence, Crown, Court Services and the Judiciary must act to ensure delays do not come to the point where a citizen's s. 11(

b) Charter rights are violated. [ 32 ] In Cody , the Supreme Court of Canada reiterated that its precedents must be followed and cannot be lightly discarded or overruled. Although Jordan was decided by a divided court, it is noted that Cody was a unanimous decision of the court. [ 33 ] Neither Jordan nor Cody refer to or discuss the topic of regional differences in ensuring cases are concluded in a timely fashion. There is an underlying good reason for not entering into such a discussion. Why should a citizen in Kamloops expect to have their trial conducted any faster or slower than someone in Surrey or Sparwood.

Section 11(

b) Charter rights, like all Charter rights, are meant to apply to all citizens, regardless of their location within Canada. [ 34 ] Like the other branches of government, the legislative and executive branches, the judiciary operates under financial and human resource constraints. It would be utopia if all cases could be dealt with in a fashion that accommodates every participant's needs and wants and still ensures perfect compliance with all the Charter rights and remedies. [ 35 ] However, the world of scheduling long matters in remote circuit locations is by no means utopia.

By the very manner in which circuit court locations are serviced, there will be time when the service provided does not meet the needs of all the participants. This is particularly true in criminal law and longer cases, cases involving unusual complexity, or cases involving multiple accused and counsel. [ 36 ] There is the additional factor that other cases of high importance must also be scheduled and be heard by the court in the limited time available.

Youth cases and child apprehension cases are but two examples. [ 37 ] For longer cases in circuit locations, it is often necessary to arrange for special sittings. Such sittings require enormous planning and preparation. [ 38 ] In the Northern Region of the Provincial Court there are 18 judges serving 30 communities, of which 22 are circuit locations served on a variety of frequencies. A special sitting requires either a redeployment of one of those judges or a request for additional judicial resources from the Office of the Chief Judge.

Those resources are not necessarily available every week of the year. [ 39 ] Once the judicial resources are confirmed, there must be requests made of the Court Services Branch and the Sheriff Services for additional resources from those entities. If they are available on certain weeks but not others, that must also be considered. [ 40 ] Next, finding weeks in which there are additional courtroom space, and courtroom spaces not conflicting with the court's regular

schedule must be undertaken. In the case of Fort Nelson, the court can only sit additional weeks when regular sittings are not scheduled because there is only one courtroom. [ 41 ] After all these steps are taken, and certain available weeks are identified, the Crown and the defence are then canvassed and based on their availability cases are scheduled for the special sitting. [ 42 ] All of these steps can take weeks, or even months, to accomplish. Unfortunately that lengthy process occurred in this case.

That can be seen from the exhaustive email chains among the court's officers with regard to this matter, a copy of which emails are going to be left in the court file. [ 43 ] Turning to the steps to be undertaken as described in Jordan , and confirmed in Cody , the following findings can be made. [ 44 ] The Information was sworn on November 23, 2015. The last date of the anticipated trial, according to defence counsel, is September 29, 2017, a total of 22 months, six days.

However, even if all of the evidence and submissions were made by September 29, 2017, it is quite possible the court may have to reserve until this judge's next appearance in Fort Nelson, which would be November 6 to 10, 2017, for a decision to be rendered. That would make the total time 23 months 13 days. That delay is presumptively unreasonable under the Jordan test. [ 45 ] Defence delay: (

a) waiver. There is no explicit or implied waiver by the defence in this case. The Defendant engaged counsel early on, disclosure was sought immediately, and repeatedly by defence counsel, and many available dates, starting as early as five months after the arraignment, were provided by defence counsel to his agent and to the court. [ 46 ] (

b) Illegitimate actions by Defendant or defence counsel. I do not agree with the Crown’s submissions, or most of the points in time that they say should be attributed to the Defendant. The time periods to obtain disclosure lie more in the Crown than the defence. The Crown’s suggestion that disclosure must wait until a filed Counsel Designation Notice is provided is not founded in law. It may well be based on Crown policy, for which it must accept responsibility. [ 47 ] The adjournments of April 12, 2016 to review disclosure, and May 10, 2016 to discuss matters with the Crown, were initiated

by defence counsel, but were not illegitimate in nature. [ 48 ] One thousand pages of disclosure, like the book, War and Peace , would be considered by most people to be voluminous. Despite what was asserted by the Crown about the necessity to review only certain portions of the disclosure, defence counsel cannot determine that in advance. Anything less than a thorough review of the disclosure by defence counsel and then meeting with the Defendant to discuss same would not meet the professional responsibilities and obligations required of counsel. [ 49 ] The time between May 10, 2016 and July 26, 2016 was lengthy, but was driven by the court

schedule because there was no June sitting. The Crown raises the possibility of doing an electronic consent arraignment and that defence counsel should be faulted for not pursuing it. However, such forms are rarely used and cannot be accepted by JPs. They can only be accepted by Judicial Case Managers and there is not a Judicial Case Manager in Fort Nelson. [ 50 ] The Crown does raise a legitimate point regarding the delay between January 26, 2016 and February 23, 2016 when defence counsel, although retained, took no appropriate steps to ensure the Defendant's appearance.

I do not accept defence counsel's position that it was time thrown away. In any event, it is approaches like that that caused the Supreme Court of Canada in Jordan and Cody to directly address the issue of complacency. [ 51 ] Deducting those 28 days from either the 22 months and six days which counsel advocates, or the 23 months and 13 days which the court thinks might be appropriate, estimates leave either 21 months and eight days or 22 months and 15 days to be accounted for, which still is presumptively unreasonable. [ 52 ] Are there exceptional circumstances in this case, as described in Jordan ?

The Crown acknowledges that there are no complex issues to be resolved, leaving the issue of discrete events to be discussed. [ 53 ] Having rejected the Crown's arguments on defence delay, it is necessary to consider any other matters that the Crown has no control over that amount to exceptional circumstances. There are no such events in this case. [ 54 ] That is not to say that the Crown is "at fault" for the delays that resulted here.

Furthermore, most of the fault does not lie at the feet of the Crown, to use the older wording used in pre- Jordan decisions. [ 55 ] The court strives to ensure all cases, and in particular serious offences, are adjudicated on the merits in a timely fashion. Those efforts ensure cases are dealt with appropriately and within a reasonable time, and within the parameters of s. 11(

b) of the Charter , and the direction of the Supreme Court of Canada in Jordan and Cody . [ 56 ] In this case, despite the best efforts of the court and its officers, the court did not meet those expectations. Jordan and Cody dictate the result. The overall delay here exceeds the 18-month timeline by several months. The Defendant is entitled to her relief for the violation of her s. 11(

b) Charter rights. [ 57 ] There will be a judicial stay of proceeding on both counts on Information 11840. [ 58 ] I thank counsel for their able and thoughtful submissions on this matter. [REASONS FOR JUDGMENT CONCLUDED]