R. v. Brawn, 2021 BCPC 87

Citation: R. v. Brawn 2021 BCPC 87 Date: 20210329 File No: 17631-2 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JESSE LEE BRAWN RULING ON APPLICATION RE: CONSTITUIONALITY OF S. 786(2) OF THE CRIMINAL CODE AND S. 7, 11(

a) AND (

b) OF THE CHARTER OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: L. Ruzicka, W. Silliker Counsel for the Defendant: S. Runyon Place of Hearing: Port Hardy , B.C. Dates of Hearing: October 9 and November 10, 2020 Date of Judgment: March 29, 2021

Introduction: [ 1 ] On July 20, 2020, an information was sworn alleging that on September 22, 2019, Mr. Brawn assaulted Donald Kattler, contrary to s. 266 of the Criminal Code . The Crown chose to proceed summarily. Mr. Brawn was informed of this charge shortly after it was sworn and while he was in custody serving a sentence on another matter. [ 2 ] Mr. Brawn asserts that the recently amended s. 786(2) of the Criminal Code allowing an increase from 6 months to 12 months before instituting charges for this offence specifically, and less serious crimes generally, amounts to an infringement of his rights under s. 7 , s. 11(

a) and s. 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ” ). He asks this Court to find that the provision is unconstitutional and seeks a judicial stay of proceedings. [ 3 ] If this Court declines to find the

section unconstitutional, Mr. Brawn alternatively seeks a judicial stay of proceedings pursuant to s. 24(1) of the Charter based on an infringement of his s. 7 and s. 11(

b) Charter rights. He does not assert, at least at this time, an infringement of his s. 7 right based on an abuse of process. [ 4 ] The Crown asks that Mr. Brawn’s applications be dismissed for reasons that will be more fully summarized and developed later in my decision. The Crown also submits that the challenge alleging a breach of his s. 7 and s. 11 (

b) rights due to pre-charge delay should be heard at the conclusion of the trial because it is only then that the Court can assess if it has impacted his ability to make full answer and defence. History: [ 5 ] The chronology of events is as follows: September 24, 2019 Mr. Kattler provided the only statement regarding this offence to the RCMP. February 19, 2020 Mr. Brawn was sentenced to 14 month global sentence of imprisonment for two possession for the purpose of trafficking offences and one conviction for unauthorized possession of a firearm. He was also subject to probation for one year.

The offence dates were March 24, 2019. March 10, 2020 Mr. Brawn was sentenced to one day imprisonment, consecutive to the sentence imposed on February 19, 2020, for possession of a controlled substance. The offence date was November 12, 2019. I note that this offence occurred approximately 1.5 months after the date of the alleged current offence and sentencing occurred close to five months afterwards. March 31, 2020 The Report to Crown Counsel (“RCC”) was submitted by the Port Hardy RCMP. April 3, 2020 The RCC was returned to the RCMP by Crown counsel with a request for further follow up.

June 22, 2020 The RCMP conducted a photo line-up with Mr. Kattler, nine months after the alleged offence. June 24, 2020 The RCC was re-submitted for charge approval by the RCMP. July 14, 2020 Charges were approved. July 20, 2020 The information was sworn and an unendorsed warrant is issued for the arrest of Mr. Brawn. July 20-23, 2020 BC Corrections notes the warrant on their system and contacted Port Hardy Crown Counsel Office. July 24, 2020 A spring order and warrant were executed on Mr. Brawn in Campbell River as he made his first appearance for this charge in Campbell River Provincial Court.

Crown consented to Mr. Brawn’s release, but he was in custody serving a sentence imposed on February 19, 2020. August 24 & 31, 2020 Mr. Brawn appeared in BC Provincial Court. Crown consented to his release, but he was still in custody on the earlier matter. September 17, 2020 Mr. Brawn was released on day parole. October 20, 2020 Mr. Brawn’s parole was suspended and he was brought back into custody. December 4, 2020 Mr. Brawn’s parole was revoked. February 18, 2021 Mr. Brawn was released and he started his one year probation. [ 6 ] Mr.

Brawn was never required to comply with release conditions on this matter. [ 7 ] Mr. Brawn’s trial is scheduled to proceed for four hours on May 12, 2021, and is expected to conclude that day. Mr. Brawn’s Evidence: [ 8 ] Since February 2020, Mr. Brawn had been serving a sentence at the Guthrie House Therapeutic Community in the Nanaimo Regional Correctional Centre. In 2017, turning to drugs to cope with difficulties in his personal life, he developed an addiction to heroin and fentanyl.

As a result, he lost his job, stable housing and started to sell drugs to supply himself with the drugs he needed. [ 9 ] While in Guthrie House, he did well and completed a variety of programs including counselling. He became eligible for day parole and started working with his counsellors on a release plan.

In July 2020, when he was advised of the new current charge, he “felt as though the rug had been swept right out from under me.” He was deeply concerned that he would not be able to obtain parole. [ 10 ] He described being on an emotional rollercoaster and that he believed the new charge would have resulted in him being denied parole. His understanding was based on what he says he was told by a parole officer.

He testified that the new charge made it difficult to convince prospective employers that he had turned his life around. [ 11 ] He was released on day parole on September 17, 2020, and it was to have ended on November 30, 2020. When he testified on October 9, 2020, he was living in second-stage housing and his plans were to look for permanent employment and find an apartment to help him care for his infant daughter.

[12] He has a limited criminal record and has a conviction for theft, possession for the purpose of trafficking and possession of acontrolled substance. All are related to his addiction. [13] During Mr. Brawn’s evidence, counsel confirmed that the jeopardy to Mr. Brawn’s parole was not that it would be revoked as aresult of the new charge, but that if he received a jail sentence for the current offence, his parole may be suspended. In that event, theParole Board has the discretion to place Mr.

Brawn back in custody until the suspension is cancelled, the parole is terminated or revokedor the sentence expires: s. 135(1.1) and (1.2), Corrections and Conditional Release Act (S.C. 1992, c. 20). [14] When he was asked if knowing that his initial concern about parole being revoked would address his perceptions of this matter,his response was “not necessarily” and still wouldn’t justify pleading guilty to something he is not guilty of committing. [15] Subsequent to his testimony, for reasons unrelated to the current charge, Mr.

Brawn’s parole was suspended on October 20,2020, and he was brought back into custody. The revocation decision was made on December 4, 2020, and he was released on February18, 2021. He began his one year probation at that time. The Constitutionality of s. 786(2) [16] Approximately 10 months elapsed between the date of the alleged offence and the laying of the information. [17] Mr.

Brawn says that the amendment extending the limitation period “disincentivizes proactive action” contrary to the cleardirection by the Supreme Court of Canada that all participants in the justice system have a responsibility to ensure that trials are heldwithin a reasonable and timely manner: R. v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631 and R. v. Cody, 2017 SCC 31 ,[2017] 1 SCR 659. [18] He asks this Court to consider “whether it is fair, as that term applies to s. 11 and s. 7 of the Charter, to delay charging offencesby

summary conviction procedure for up to 12 months”, and seeks a finding that the amended provision, s. 786(2), is unconstitutionaland of no force or effect pursuant to s. 52(1) of the Charter. [19] Bill C-75 amended the Criminal Code and effective September 19, 2019, the limitation period applicable to

summary offenceswas increased from 6 months to 12 months. This provision is contained in the

section of the Criminal Code that applies to proceedingsrespecting offences that are punishable on

summary conviction and does not apply to proceedings that are prosecuted by indictment: 786

(1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part. Limitation

(2) No proceedings shall be instituted more than 12 months after the time when the subject matter of the proceedings arose, unless theprosecutor and the defendant so agree. [20] Mr. Brawn’s position is informed by academic literature that has characterized criminal statutes of limitation as based on thepremise that: … [P]rosecutions should not be allowed to ferment endlessly in the files of the government to explode only after witnesses and proofsnecessary to the protection of the accused have by sheer lapse of time passed beyond availability.

University of Pennsylvania Law Review, “The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution” (1954), at632, online (pdf): <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7793&context=penn_law_review> [21] The authors of this

article suggest that this supplements the constitutional right to a speedy trial and ensures that prosecutions willbe based on evidence that is “reasonably fresh and therefore more trustworthy”. Furthermore: The pursuit of only more recent criminals is consistent with that aim of criminal law which seeks to rehabilitate wrongdoers and serves tofree the citizen from vexatious fear of prosecution from old crimes. … Supra, p. 634. [22] Interestingly, the authors refer to the varying limitation periods across the United States.

For example, (at least in 1954)misdemeanours were subject to a limitation period of between one year and six years. The concern said to be protected by limitationperiods is the reliability of evidence, difficulties in making a defence and negative consequences for the self-rehabilitated individual.

Theauthors recognize that the need to have limitation periods is essential to provide protection from unjust prosecution and point out thatmost of the existing statutes they studied: … seem to have been drafted with little consideration of the aims which the limitations should achieve, that is, the assurance of amaximum degree of availability and reliability of evidence consonant with an adequate allowance of time for investigation andprosecution. Supra, p. 651.

Why s. 786(2) was amended: [23] It was concern for delay that prompted Parliament to enact a number of amendments to the Criminal Code including theimpugned section. Those amendments included a change to the classification of offences which made a larger number of offences subjectto prosecution either by way of indictment or summarily – in other words, these were now hybrid offences and Crown could chooseeither process.

[24] At the same time, Parliament recognized that hybridizing more cases previously classified as indictable would give the Crownmore flexibility to bring cases in Provincial Court for a larger number of less serious cases. The change in the limitation period to 12months was regarded as complimentary to this to allow more time for police officers to investigate the more complex cases (Departmentof Justice Canada, “Legislative Background:

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)” (August 2019), at 26, online (pdf):Department of Justice Canada <https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/c75/index.html>). [25] The amendment to s. 786(2) was part of a broader series of amendments designed to improve efficiency in the criminal justicesystem, particularly by allowing previously indictable offences to be hybridized.

This allows Crown counsel to prosecute offencessummarily and reduces the potential jeopardy faced by an accused on sentence. [26] I agree that the excerpts of the legislative backgrounders and various reports provided to me relating to the amendments in BillC-75 do not address the potential impact of an increased limitation date on the most simple offences such as the current offence oradministrative offences. Parliament’s stated intention was to improve efficiency in the criminal justice system by bringing more mattersunder the umbrella of

summary offences which could be heard in Provincial Court, thus freeing up time in the Superior Courts for moreserious offences. At the same time, changes were made to reduce the amount of time taken up in provincial court by preliminaryinquiries by limiting the right to a preliminary inquiry to those people charged with offences that could attract a jail sentence of 14 yearsor more. [27] Mr. Brawn says that the new limitation period could allow a straightforward case to sit in abeyance, without formal charges, foras much as a year.

He argues that contrary to Jordan, this will condone and facilitate delay and complacency in the criminal justicesystem. He suggests that Parliament was cognizant of issues with the under-resourcing of Crown counsel and the cure was to extend thetimeline within which Crown could approve charges. [28] I am not persuaded the amended limitation period in s. 786(2), in and of itself, has infringed Mr. Brawn’s protected interestsunder s. 7, 11(

a) or (b). Parliament clearly considered, and was alive to, the impact of delays in the criminal justice system on allindividuals including the right of an accused person to have a trial within a reasonable time under

section 11(

b) of the Charter. As set outin the introductory remarks in the Legislative Background: These protections act as an important safeguard by limiting the amount of time an accused can be subject to restrictions on their libertyprior to a decision on their guilt or innocence. Despite that they are presumed innocent, accused persons are often subject to strict bailconditions or detained in remand centres while awaiting trial, with significant repercussions on their health and well-being, their familyand social relationships, and their livelihood. [29] There is no right to a particular limitation period but the rights at issue are best addressed through an analysis of s. 7, 11(

a) and(

b) of the Charter. I dismiss Mr. Brawn’s application for a ruling that s. 786(2) is unconstitutional. The Legislative and Current Legal Framework: [30] Mr. Brawn is charged with assault contrary to s. 266 of the Criminal Code: 266 Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. [31] The Charter guarantees the following rights: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. 11. Any person charged with an offence has the right: to be informed without unreasonable delay of the specific offence; to be tried within a reasonable time; The Charter Submission: [32] Mr.

Brawn asserts that the effect of the extended limitation infringes his right to liberty of the person, specifically as a paroleefacing “a clear deprivation of his liberty” due to a possible suspension and revocation of parole in the event of a custodial sentence. [33] Mr. Brawn asserts that in relation to his s. 11(

b) right to a trial within a reasonable time, I should consider pre-charge delay incircumstances where, due to state complacency, there is not only prejudice to an accused person’s right to make full answer and defence,but also when it significantly compromises that person’s liberty interest. [34] Mr. Brawn relies on the more recent jurisprudence that has criticized delay in the justice system and what has been identified as a“culture of complacency”: R. v. Jordan 2016 SCC 27 , [2016], 1 SCR 631; R. v. Cody, 2017 SCC 31 , [2017] 1 SCR659. [35] Mr.

Brawn’s Charter rights and the impact of delay in charging him with an offence must be placed in the context of the mostrecent pronouncement from the Supreme Court of Canada in Cody:

[1] … [E]very actor in the justice system has responsibility to ensure that criminal proceedings are carried out in a manner that isconsistent with an accused person’s right to a trial within a reasonable time. [36] To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up thepieces once the delay had transpired” [cite omitted]. A proactive approach is required that prevents unnecessary delay by targeting itsroot causes. All participants in the criminal justice system share this responsibility [cite omitted]. [36] Mr.

Brawn’s concern is that the Crown should not be able to circumvent the Jordan framework and the protections in ss 7, 11(a)and (

b) by delaying the swearing of an information under the new extended limitation period. [37] Mr. Brawn argues that these changes have not, and will not, expedite proceedings and points to the facts in his case as evidenceof that proposition. He says there is a great risk that he, and others accused of

summary conviction offences, will be prejudiced in anumber of ways. I will explore those in greater detail later in this decision. [38] Furthermore, he says the extension of the limitation period for

summary offences has the effect of providing no incentive forCrown or police, to act expeditiously in investigating or approving charges, contrary to the clear direction from our highest court. [39] Mr. Brawn also points out that less serious, non-complex offences could potentially be in the system and persons subject toconditions on an undertaking to a police officer for up to 12 months before charge approval and the laying of an information.

Hequestions the implications of this for a person charged with an administrative offence such as a breach of a counselling condition or afailure to report to a probation officer. [40] Focusing on administrative offences for a moment, those charged with these types of offences typically comprise those offendersstruggling with homelessness, poverty, mental health issues and substance use or addiction disorders.

Based on the limitation of 12months to institute proceedings and a Jordan ceiling of 18 months for a trial in provincial court, he says that these individuals couldpotentially face 30 months between the offence date, time awaiting charge approval and a trial. It may make full answer and defencevery difficult due to the passage of time and fading memories or availability of witnesses.

Section 11(

a) and (

b) of the Charter: [41]

Section 11(

a) of the Charter provides constitutional protection in two ways. First is notice of the specific offence. This is toprotect the right of an accused to make full answer and defence and ensure that an accused is able to mount an effective defence,assemble evidence and prepare to meet the Crown’s case: R v. Cisar, 2014 ONCA 151, para. 11. [42] The second is the right to be informed of the specific offence without reasonable delay.

This also protects the right to make fullanswer and defence and is related to the following Charter protected rights under s. 11(b): the right to security of the person, the right toliberty and the right to a fair trial. The Court in Cisar, cited R. v. Morin, (SCC), [1992] 1 SCR 771, at p. 786, to explainhow rights under s. 11(

b) are protected: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. [43] The Crown raises two hurdles to Mr. Brawn’s s. 11(

a) application. The first is that the wording of this

section of the Charterrefers to persons “charged” with an offence. In support of the position that the protection only commences when the charge is laid (theinformation is sworn or the Indictment preferred), Crown argues that the time the offence occurs or when an accused is detained orarrested is not relevant to my analysis. [44] The second hurdle is the argument that an infringement of s. 11(

a) will “generally only occur if an accused is able to show thathis or her right to a fair trial or ability to prepare a defence has been prejudiced as a result of the length of delay in informing him or herof the specific offence.” In other words, the accused must show actual prejudice and cannot rely on inferred prejudice. [45] She relies on the reasoning in R. v. Delaronde, (QC CA), [1996] QJ No. 535, affm’d (SCC),[1997] 1 SCR 213. There, Otis J.A. adopted the narrow approach to the analysis of the scope of 11(

b) in R. v. Kalanj, (SCC), [1989] 1 SCR 1594 in which the majority disagreed with a more flexible approach to the meaning of “charged” and was of theview that pre-charge delay was not a factor for consideration under s. 11(b). Although Kalanj dealt with s. 11(b), Otis J.A. applied thoseprinciples to the s. 11(

a) analysis in accordance with principles of unity of expression to ensure coherence of the entire section. [46] In Delaronde, the accused argued that his s. 11(

a) right was infringed due to a 20-month delay between the laying of theinformation and his arrest. There were a number of very good reasons why the police did not arrest the accused within the Kahnawaketerritory, including real concern for their safety and lives. However, the Court concluded that the police could have used other means tonotify the accused of the offence that would not have required them to enter the territory and would have satisfied the intent of theCharter protection. [47] Otis J.A. then went on to determine if the delay resulted in prejudice to the accused.

She referred to statements by Cory J. inAskov at p. 1220, that set out a number of factors that could affect the right to a fair hearing in the context of s. 11(

b) and that directlyrelate to the passage of time: fading witness memories and the unavailability of witnesses due to illness, moves, death, et cetera. [48] This kind of prejudice – inferred from delay itself - was not applied in Delaronde. Taking a more narrow approach, at para. 58,Otis J.A. took the view that: [I]n the case at issue the prejudice related to s. 11(

a) cannot be evaluated from the angle of an infringement of the right to liberty or theright to security of the person, as it can be under s. 11(b), because the accused was not imprisoned or subjected to restrictive conditions

of release, nor did he experience the anxiety and stress that could be associated with a pending criminal charge. As a result, only theprejudice related to an infringement of the right to a fair hearing can be considered in this case. [49] The accused did not provide any evidence of “actual impairment of his ability to make full answer and defence” and the evidenceadduced at the trial did not show the existence of any “impediment to the right to a fair hearing.” [50] Ultimately, the accused’s application failed because he could not establish actual prejudice to his right to provide full answer anddefence.

Section 11(b) [51] Relying on the narrow construction of s. 11(

b) in Kalanj, Crown says that s. 11(

b) does not protect against pre-charge delay andit is not counted when assessing the overall period of delay: R. v. Kalanj, (SCC), [1989] 1 SCR 1594, at para. 14-21.Rather, it is only in exceptional circumstances when it will be relevant to the assessment of post-charge delay as, for example, whenCrown withdraws the charge and substitutes a different one for the same transaction: R. v.

Carter, (SCC), [1986] 1 SCR981 at para. 11-12 [52] At para. 12 of Carter, Lamer J. states the rationale for this reasoning: … is because prior to the charge, the liberty of the individual will not be subject to restraint nor will he or she stand accused before thecommunity of committing a crime. Thus, those aspects of the liberty and security of the person which are protected by s. 11(b) (asopposed to those other aspects of the liberty and security of the person which are protected through s. 7 and s. 11(d)) will not be placed injeopardy prior to the institution of judicial proceedings against the individual.

Hence, pre-charge delay is irrelevant to those interestswhen they are protected by s. 11(b). Is it Time to Revisit This Rationale? [53] It appears clear to me that the underlying rationale for a narrow

interpretation of s. 11(a) – the right only to a fair trial/full answerand defence – is based on the premise that if an accused is not aware of the charge, they are not subject to the anxiety, concern andstigma of exposure to criminal proceedings and their liberty is not impacted (Cisar, supra, para. 13). [54] Similarly, the narrow

interpretation given to s. 11(

b) rights that precludes a consideration of pre-charge delay is based on anassumption that an accused person’s liberty or security interests are not engaged before formal commencement of proceedings. Rather,the focus is on whether there is prejudice to an accused’s right to make full answer and defence. [55] There is some jurisprudence to support the view that the protection afforded by s. 11 (

a) may not be limited solely to a right to afair trial and to make full answer and defence. In R. v. Delaronde, (SCC), [1997] 1 SCR 213, although obiter, LamerC.J. specifically left open the possibility that other forms of prejudice from a breach of s. 11(

a) rights may entitle an accused to a remedyunder s. 24(1) of the Charter. At para. 4 he said: However, I believe that apart from any breach of the right to a fair trial, a person charged with an offence could rely on an infringementof his or her s. 11(

a) right where economic prejudice is proven. With respect, I do not think an infringement of s. 11(

a) of the Charter islimited solely to a breach of the right to a fair trial. Accused persons have the right to be informed rapidly of the charges against them sothat they can make important decisions relating to, among other things, their professional or family life. If such decisions lead toeconomic prejudice as a direct result of unreasonable delay in informing them of the specific offence with which they are charged, itshould be open to them to rely on the infringement of the right protected by s. 11(

a) of the Charter and to apply to the appropriate courtfor a remedy under s. 24(1). [56] It remains clear, however, that the rights protected by s. 11(

a) are closely related to the rights protected by s. 11(b) (Cisar, para.11 - 12). Underpinning the s. 11(

b) right to a fair trial, is the protection of an individual’s liberty and security of the person. [57] I agree with Mr. Brawn that the analytical framework associated with s. 11(

a) and (

b) as it relates to pre-charge delay has notbeen squarely revisited by the Supreme Court of Canada for a considerable length of time and not since Jordan. The weight of legalauthority as it stands now is that s. 11(

a) is engaged only at the time an information is sworn. Both accused in the Jordan and Cody caseswere arrested and charges were laid fairly promptly. Neither case dealt with the issue of pre-charge delay as it relates to an assessment ofoverall delay and the impact upon individual Charter rights. [58] An individual who is arrested by the police and told that they will be charged for an offence may experience anxiety, stress andstigma arising before the charge is formally commenced.

In addition, liberty interests may be engaged before an information is swornwhen an individual is placed on conditions of an undertaking to a police officer. [59] There are other consequences that may flow from pre-charge delay. Delay can result in the degradation of reliable evidence.Decisions may be made by individuals who are unaware that criminal proceedings are pending against them. [60] Jordan established a new legal and analytical framework to address systemic tolerance and complacency towards excessivedelays in the criminal justice system.

The Court placed special emphasis on the importance of timely justice and an efficient criminaljustice system not just for people accused of crimes, but for the Canadian public generally, victims of crime and their families. The Courtmade it clear that a fundamental shift was required to address ongoing systemic delays in the criminal justice system: [4] Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative.

Notwithstanding adelay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of theview that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing thecurrent analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towardsdelay.

[5] A change of direction is therefore required. 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 it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus the s. 11(

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11( b )’s important objectives. [Emphasis Added] [ 61 ] The ceiling of 18 months in Provincial Court (30 months in the superior courts) is the maximum period of time that is reasonable to bring a matter to conclusion. Beyond this ceiling, delay is presumed to be unreasonable.

The clear message to all participants in the justice system is aptly described in paragraph 50: [50] A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time : court administration, the police , Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(

b) is not a hollow promise. [Emphasis added] [ 62 ] The ceiling does not mean that everyone in the justice system now has 18 months in the Provincial Court system within which to bring a matter to trial. It is clear the expectation is most cases be resolved before reaching the ceiling and that even 18 months is a long time to wait for justice.

The new framework allows for a case specific factors in the assessment of overall delay that is over or below the presumptive ceiling: Jordan , para. 5 . [ 63 ] Jordan is clearly a landmark decision that shifted the legal landscape in a system that had become complacent and tolerant of delay. An otherwise excessive delay was considered reasonable if an accused could not demonstrate actual prejudice to his or her protected interest.

The majority in Jordan expressly recognized that it is very difficult to demonstrate actual prejudice particularly in relation to security of the person or fair trial interests: Jordan , para. 33 . As a result, a ceiling was established that, once reached, would shift the burden of proof to the Crown to establish the reasonableness of the delay. [ 64 ] The Court recognized the deference owed to prosecutorial discretion, but reminded Crown counsel to be aware that delay resulting from that discretion must conform to the accused’s s. 11(

b) right: Jordan , para 79 . [ 65 ] The need for a change in the analytical framework applicable to s. 11(

b) right to be tried within a reasonable time was emphasized again in Cody . [ 66 ] It is clear, that the Court in both Jordan and Cody was concerned about the wide impact of delay in the system, including the liberty and security interests of both accused. Mr. Jordan spent two months in custody after his arrest and was on restrictive bail conditions for close to four years. Mr. Cody was subject to bail conditions that affected his liberty. He experienced mental distress and anxiety, and lost employment because of restrictions on his ability to travel. [ 67 ] The older jurisprudence that analyses pre-charge delay as it relates to s. 11(

a) and (

b) operates on the assumption that an accused person’s liberty and security interests are not engaged until formally charged when an information is laid or a direct indictment preferred. This narrow

interpretation and the extent of those rights will need to be addressed by higher courts, especially in light of Jordan and the clear emphasis on the responsibility of all justice participants to change the culture of delay and complacency, and the recognition that bail conditions as well as the stress and anxiety associated with criminal proceedings engage liberty and security of the person. [ 68 ] Although obiter, the remarks of Lamer, J. in Delaronde recognized an expanded (and I would suggest realistic) view that unreasonable delay of the right to be informed of a charge under s. 11(

a) should not be limited solely to the right to a fair trial as suggested by Otis J.A. According to him, accused persons have the right to be informed rapidly of the charges against them so they can make important decisions, including those relating to their professional or family life. An infringement of the s. 11(

a) right may result from, for example, economic prejudice. [ 69 ] If this approach is revisited, particularly in the post Jordan climate, it supports reasoning that an accused person’s liberty and security interests are engaged by virtue of being required to comply with restrictive bail conditions before an information is sworn.

I note parenthetically that in my courtroom I regularly see police undertakings, before an information is sworn, that include conditions to report to a bail supervisor, to stay away from the family home, to have no contact with a spouse/partner or children or to abstain from alcohol or substances to which a person is addicted. [ 70 ] The jurisprudence relating to s. 11(a), at least at this point, is clear. Those rights are engaged when “charged”, that is when the information is sworn. [ 71 ] The issue of how to deal with unreasonable pre-charge delay may be better suited to an analysis of the s. 11(

b) framework. It seems to me that the guarantee to have a trial within a reasonable time, including the right to liberty and security of the person, could very well be impacted if there is unreasonable delay at the front end – before the information is actually sworn. [ 72 ] The law relating to when pre-charge delay can be considered in the context of s. 11(

b) has been the subject of much judicial debate. [ 73 ] I recognize that the jurisprudence that pre-dates Jordan (by a considerable period of time) concluded that pre-charge delay, absent exceptional circumstances, is not be included in the assessment of overall delay on the basis that the s. 11(

b) right is engaged only when a person is charged – when the information is sworn. There has been debate about the meaning of “charged” in a number of decisions, but accept that debate ended, for the time being, with the ruling in Kalanj that “charged” means when the information is

sworn. [74] Recently, in R. v. Virk, 2021 BCCA 58, a five-judge division was convened to address apparently conflicting decisions on thestandard of review of a trial judge’s allocation of periods of delay. The Crown appealed the trial judge’s decision to enter a stay forunreasonable delay contrary to s. 11(b). The trial judge included in net delay the 140 days between the laying of the information and thearrest of the accused.

Fenlon, J.A., writing for the majority, did not agree with the submission of Crown that because it does not havecontrol over when the police execute process on an accused person, that period should have been deducted from total delay. She also didnot accept the Crown submission that the issue of when the clock starts to run remains unresolved. [75] In that context, the court concluded the

interpretation of the term “charged” under s. 11(

b) in Kalanj (supra) is correct and meanswhen an information is sworn alleging an offence or where a direct indictment is laid. This unwavering approach was said to continue inR. v. K.J.M., 2019 SCC 55. K.J.M. involved a consideration of delay in a youth matter and whether the presumptive Jordan ceilingshould be reduced in those circumstances. The Court also provided guidance as when a trial judge could consider the time involved inextra-judicial sanctions before the charges are laid.

In obiter, the majority was of the view that generally the Jordan clock starts tickingwhen the information is sworn, but that a consideration of pre-charge time (the extra-judicial sanctions) could be considered on a case bycase basis and might, in some rare circumstances, be included in the Jordan calculation. The issue of pre-charge delay was not before theCourt.

The reasoning for not including extra-judicial sanctions in the calculation of overall delay was out of concern that these measuresmight not be utilized if there were concerns that a stay could result based on delay: at para. 89. [76] I pause to note that in Virk, the Court did not have the benefit of hearing submissions about whether previous jurisprudencerelating to pre-charge delay should be considered or reconsidered following the significant developments in the law post Jordan. [77] Since Kalanj, the legal landscape as it relates to assessing delay and s. 11(

b) rights has changed significantly. The reasoning inKalanj was not reviewed by the Supreme Court in Jordan, Cody or K.J.M. because the issue of pre-charge delay as it may relate to s.11(

b) was not before the Court. [78] Trial courts may reconsider settled rulings of higher courts when a new legal issue is raised as a consequence of significantdevelopments in the law, or if there is a change that fundamentally shifts the parameters of the debate: Canada (Attorney General) v.Bedford, 2013 SCC 72, para. 42. The principle of stare decisis is not a straightjacket that condemns the law to stasis. (Carter v. Canada(Attorney General), 2015 SCC 5). [79] Furthermore, the Charter is envisioned as a “living tree”, rooted in our past and present institutions but it must be capable ofgrowth to meet the future. The

interpretation of the rights guaranteed by the Charter must be examined through the lens of the rights orinterests it was meant to protect. Restrictive and narrow

interpretations that freeze constitutional

interpretation are inconsistent with the“living tree” doctrine: Gosselin v.

Québec (Attorney General), 2002 SCC 84 at para. 317. [80] At paragraph 41 of Jordan, the Court highlighted that when delay is dealt with at “the back end”: … participants in the justice system -- police, Crown counsel, defence counsel, courts, provincial legislatures and Parliament -- are notencouraged to take preventative measures to address inefficient practices and resourcing problems. [81] Although Jordan was concerned with delay between the time between the laying of the charge and the end of the trial,subsequent judicial consideration has been given to pre-charge delay in assessing the reasonableness of delay in bringing a matter to trial. [82] Pre-charge delay was factored into the overall delay analysis in Curry (supra) on the basis that the defendant’s liberty andsecurity interests were engaged.

There, the accused had been arrested, held overnight and released on stringent conditions including acurfew for three months, before the charges were stayed. A new information was sworn approximately four months later. Holmes, J. didnot accept the Crown contention that the liberty and security interests of the accused person were not engaged during the time chargeswere stayed. Citing R. v.

Finn, (SCC), [1997] 1 SCR 10, she concluded that he “stood accused before the communityof committing a crime” from the day of his arrest and would have been subject to “stress, anxiety, and stigma” flowing from the initialcharges. [83] In R. v. Pasco Seafood Enterprises Inc., [2017] BCJ No. 2907, Smith, P.C.J. followed the reasoning of Holmes J. and concludedthat pre-charge delay is relevant to the s. 11(

b) right to a fair trial. Liberty and security interests were not an issue before the judge in thiscase. [84] The trial judge in Virk was of the view that Kalanj approach to pre-charge delay was not resolved in Jordan as it was not beforethe Court. However, the trial judge continued on the assumption that the clock had started running when the information was sworn. [85] The highest court in Canada is telling all of us that the problem of delay in the criminal justice system must be dealt with at thefront end as well as throughout the entire process. The right protected by s 11(

b) is to ensure that people are tried within a reasonabletime meaning that the evidence at trial is fresh, reliable and available, accused persons are not subjected to restrictions on their liberty foran unreasonable time and the psychological consequences of being in the criminal justice system are not unreasonably prolonged. WhileI decline to make any conclusions in relation to s. 11(a), I accept that the fundamental shift in the legal landscape and developments inthe law since Jordan allows me to depart from the jurisprudence of higher courts, conclude that unreasonable pre-charge delay may beconsidered in a s. 11(

b) analysis assessing overall delay. I base my conclusion on the jurisprudence that s. 11(

b) protects not only theright to make full answer and defence, but also protects and encompasses a person’s liberty and security of the person. It is alsoconsistent with the Jordan framework that requires a contextual, case-specific approach to assess delay and ultimately to advance andfulfil the objectives of s. 11(b). [86] Turning the facts of this case, Mr. Brawn’s trial is scheduled to commence on May 12, 2021, approximately 10 months from thetime he was formally charged. This is under the presumptive limit of 18 months. [87] I accept that pre-charge delay may be considered in assessing whether an accused person’s s. 11(

b) rights have been infringed. I

also accept that some jurisprudence has been slowly moving away from a strictly narrow

interpretation of the right protected by s. 11(b)and that the delay inquiry may include an examination of how pre-charge delay has affected not only the right to make full answer anddefence, but also how or whether that delay engaged a person’s security and liberty interests. [88] Mr. Brawn was not subject to conditions of release at any point. He asserts that the delay in laying the information caused stress,anxiety, potentially jeopardized his ability to find employment due to this new criminal charge, following his release on the olderconvictions.

He also asserted an infringement of his liberty interest because, as a parolee, he would be subject to possible suspension andrevocation of parole if sentenced to jail. It was for that reason, he says that he delayed setting this trial. [89] Mr. Brawn was released on parole following the swearing of the information. Unfortunately, his parole was revoked for reasonsunrelated to the current assault charge. Shortly after his parole was revoked, he scheduled his trial. [90] I cannot conclude, on the evidence before me and at this time, that the pre-charge delay had an impact on his liberty or securityinterests.

There was some scant evidence that finding employment was potentially more difficult, and that learning about the new chargewas stressful, but his plans were scuttled when his parole was suspended and revoked for reasons unrelated to the current charge. [91] The constitutional protection provided by s. 11(b), as in 11(a), is to safeguard the right to a fair trial by allowing a person to makedecisions about their defence and assemble evidence while it is still available, fresh and reliable. [92] Mr.

Brawn points out that with the passage of time, evidence can become less reliable and the delay in informing him of thespecific offence has impeded his ability to make full answer and defence and for that reason, is an infringement of his right to liberty andsecurity. [93] I agree that the offence Mr. Brawn is facing is very straightforward and simple. There is one complainant. There apparently is novideo evidence and no other witnesses.

This is the type of trial that should be concluded in less than four hours. [94] I accept that the longer time goes on, the greater the likelihood that witness’ memories fade and witnesses may not be available.That, in my view, is factored into the “Jordan” ceiling. [95] If the information had been sworn just before the expiry of the former limitation period of six months – for example by March23, 2020 - the total time to trial would have been 13.5 months. In the context of a s. 11(

b) analysis, if delay is below the presumptiveceiling, Mr. Brawn is required to establish that the delay is unreasonable and a judicial stay based on delay should be granted only inclear cases: Jordan (supra), para. 82-83. Prejudice cannot simply be inferred and Mr. Brawn has the burden of proof to establish actualprejudice. [96] Delay between the commission of an offence and the laying of the charge does not per se justify a stay of proceedings as an abuseof process or violate s. 7 Charter rights. To hold otherwise would impose a judicially created limitation period for crimes.

Each casemust be considered on its own circumstances and findings of fact made upon the proper foundation: R. v. L.(W.K.), (SCC), [1991] 1 SCR 1091. [97] Recognizing that the Crown is under no obligation to justify the length of its investigation, Mr. Brawn asserts that I shouldconsider the pre-charge delay in assessing delay and trial fairness protected by s. 11(b). In this case, Mr. Brawn was not notified of theoffence until he received notice of the information when the warrant was issued and served upon him on July 24, 2020. At that time, hewas in custody serving a sentence for two unrelated offences.

He was sentenced for the first offence on February 19, 2020,approximately five months after the date of the current alleged offence. He was still in custody serving that sentence when he pleadedguilty and was sentenced for possession of a controlled substance on March 10, 2020. The date of that offence was November 12, 2019,about 1.5 months after the current offence. His guilty plea and sentence on March 10, 2020, was almost six months after the currentoffence.

There is simply no evidence that had he known the he was being charged with the current offence, he would have disposed ofthe charges short of setting a trial. [98] Here, I have no evidence why it took 10 months to have the information sworn and that it took the police just over six months toforward the first RCC to Crown. Mr. Brawn asserts that this delay cannot be attributed to anything other than complacency. Thechallenge Mr. Brawn faces is that there is no evidence from the investigating officer. It may be that more evidence is obtained at trialand Mr.

Brawn may choose to raise this issue at that time. [99] Mr. Brawn asserts, through counsel, that he should be focussing on his rehabilitation, finding employment and housing and,instead, he is facing a criminal trial approximately three months following his release.

The difficulty with that assertion is that Mr.Brawn was brought back into custody in late October 2020, and that is an intervening event that substantially interrupted his return to hiscommunity, not the charge or upcoming trial. [100] Delay between the commission of an offence and the laying of the charge does not per se justify a stay of proceedings as an abuseof process or violate s. 7 Charter rights. To hold otherwise would impose a judicially created limitation period for crimes. Each casemust be considered on its own circumstances and findings of fact made upon the proper foundation: R. v.

L.(W.K.), (SCC), [1991] 1 SCR 1091. [101] On the evidence before me, I am unable to conclude that the pre-charge delay was due to state complacency. To hold otherwise,and simply infer complacency was the cause of the delay and that Mr. Brawn’s s. 11 Charter rights were infringed, would be to impose ajudicially created limitation period. I decline to do so and would dismiss Mr. Brawn’s s. 11(

b) application. [102] I turn now to Mr. Brawn’s last challenge to the charge on the basis that the delay infringed is right to liberty and securityprotected by s. 7 of the Charter. [103] Mr. Brawn is now facing the prospect of a criminal trial and, if convicted, another sentence. Crown is not seeking a custodialsentence, but a sentencing judge still may depart from sentencing submissions in certain circumstances as outlined in R. v. Anthony-Cook,

2016 SCC 43. [104] Crown has indicated that they are seeking a period of probation. This affects his liberty and security in a number of ways. He maybe subject to further criminal charges if he breaches a condition of probation, he may be required to report to a probation officer which isa substantial curtailment of his liberty and he may be subject to other conditions including counselling and community work servicehours. [105] Mr. Brawn frames his s. 7 application on the basis that the state was responsible for pre-charge delay that infringed his right tomake full answer and defence.

As mentioned earlier in my decision, he asserts, and I accept, that concerns about the reliability andavailability of witnesses and evidence can erode with the passage of time.

I also agree that this is particularly so when dealing withadministrative and nuisance type offences which frequently involve accused persons, and their witnesses, who suffer from addiction,poverty, homelessness and mental health issues. [106] The full answer and defence interests are broader than those of the accused, and the court in Jordan was clear that an importantaspect of the accused’s right to a trial within a reasonable time includes a recognition that the community as well as victims and theirfamilies share that interest and see that crime is investigated and those responsible dealt with according to the law in a fair and timelymanner. [107] The s. 7 right to liberty is engaged because a person accused of an offence faces possible incarceration or other restrictions ontheir liberty.

The s. 7 right to security of the person is to protect the psychological and bodily integrity of a person. [108] Crown, relies on the dissenting opinion of Hoegg, J.A. ,upheld by the Supreme Court of Canada, in R. v. Hunt, 2016 NLCA 61,2017 SCC 25 at para. 84, 94-96, for the principle that without evidence of actual prejudice to the fair trial right, a lengthy or delayedinvestigation by itself will not establish a breach of s. 7 in the absence of evidence that the delay was the result of an oblique motive,ulterior purpose or bad faith on the part of the Crown or the police.

The trial judge in that case concluded that a 10 year pre-charge delaywas egregious and an abuse of process. However, the trial judge did not find that the accused’s fair trial interests were affected by theinvestigational delay. The trial decision was ultimately overturned on the basis that there was no evidence in the trial of personalprejudice. Hoegg, J.A. also concluded that the stress and stigma experience by the accused was not causally related to pre-charge delayor actions of the state.

She also found that the trial judge’s role was not to scrutinize an investigation for efficiency although sherecognized that “some review of Crown conduct in an investigation is required if abuse of process is alleged”. [109] That case ultimately turned on its facts – it was a complex and lengthy investigation which included over 700,000 documents andI accept that it is factually quite different from the case before me. [110] Crown says that Mr.

Brawn must prove that the pre-charge delay so adversely affected the fairness of the trial or his ability tomake full answer and defence that it constitutes a breach of s. 7: R. v. L.(W.K.), (SCC), [1991] 1 SCR 1091 at para. 15. [111] Mr.

Brawn did not frame his s. 7 argument on the basis of an abuse of process but simply on the basis of the infringement of hisliberty right as a parolee and also the right to full answer and defence. [112] I accept that parole ineligibility affects the quality of an accused person’s imprisonment and that a period of parole ineligibilitydeprives the prisoner of a liberty interest recognized under s. 7 of the Charter: R. v. Gamble, (SCC), [1988] 2 SCR 595cited in Parker v.

Canada (Solicitor General)(H.C.J.), (ON SC), [1990] OJ No. 815 at para 10. [113] In Parker, the delay in arresting the accused for a second offence deprived the accused of the potential right to timely judicialreview and possible reduction of the period of parole ineligibility. The delay by the police in executing the arrest warrant, in effect,delayed the commencement of the accused’s sentence for over six months. [114] Underpinning the s. 7 Charter right is the basic tenet of our legal system – fairness, equality and fair treatment of an accused orconvicted offender in the criminal justice system.

Henry J. found that the fact the police officer did not act deliberately, maliciously, orfor an ulterior motive, was irrelevant to the impairment of the accused’s fundamental rights under s. 7.

It was sufficient the impairmentoccurred, even if unthinking or inadvertent: para. 27. [115] I find myself in agreement with the sentiments he expressed at para. 54 – 56, thirty-one years ago: Carried to its extreme, withholding an arrest warrant leads to "revolving door justice" when an offender, having served his sentence forconviction of one offence, upon release is arrested and returned to custody for another offence for which he could and ought to have beenarrested promptly after the warrant was issued and brought to trial. There are good reasons for rejecting this.

First a man ought to know what charges he faces as soon as the authorities have decided thatthere are reasonable and probable grounds to charge him. Second, if he is undergoing trial for some other offence he ought to have theopportunity to ask the court to dispose of other outstanding charges at the same time. Third is the trite but nevertheless fundamentalprinciple that "justice delayed is justice denied".

The protection of the individual from abuse of the power of prosecution is likewise embodied in the Charter in ss. 7, 9, 10 and 11 whichin turn is the constitutional exemplification of the rule of law in this field. [116] These comments are appropriate today. The Parker case has some similarities to Mr. Brawn’s situation. However, Mr. Brawncannot establish that he was ineligible for parole or at risk of ineligibility as a result of the delay in laying the information.

As a result, hecannot establish a breach of his s. 7 Charter right on that basis. [117] At this point in time, there is no evidence regarding the actions of the police or whether or not those actions have impacted thefairness of the trial, his right to make full answer and defence or if there is an abuse of process including an oblique motive to delayforwarding the charges to Crown counsel. There is no evidence about the impact of delay on the choices Mr. Brawn would have made

had he learned of the charge much earlier and while still in custody. Conclusion: [ 118 ] In conclusion, Mr. Brawn asserts that pre-charge delay, in the face of state complacency, should be considered under the s. 11(

b) right in assessing overall trial delay. [ 119 ] He points to the difficulty in asserting an infringement of s. 11(

a) and (

b) and s. 7 rights based on pre-charge delay in the current analytical framework. In relation to s. 11(

a) rights, Crown responds with the assertion they are only engaged when the information is sworn and pre-charge delay is irrelevant. In response to s. 11(

b) rights, Crown response is this right is engaged only when the information is sworn and once again, pre-charge delay is irrelevant. Lastly, Crown says pre-charge delay could be addressed under s. 7, but that is only engaged when an accused can prove actual prejudice to their right to a fair trial – the right to make full answer and defence. In addition, to be successful in a s. 7 abuse of process application, an accused must establish an oblique motive, ulterior purpose or bad faith on the part of the Crown or the police. [ 120 ] I have concluded, after much deliberation, that pre-charge delay can be considered under the s. 11(

b) right to a trial within a reasonable time. This, in my view, is consistent with the need to address delay in the criminal justice system, not only at the back-end, but at the front-end as well. It is consistent with a purposive approach to interpreting the Charter rights affected and flows from the fundamental shift in the legal framework as it relates to s. 11(

b) following Jordan . It is also consistent with Parliament’s intention in enacting Bill C-75 which recognized the importance of s. 11(

b) rights and that the time under which a person accused of an offence is subject to the consequences of the criminal justice system should be limited. [ 121 ] In Mr. Brawn’s case, at this juncture, there is simply not enough evidence to allow me to find that pre-charge delay has infringed his s. 11(

b) right to a trial in a reasonable time, his right to make full answer and defence or that liberty or security interests were impacted as an individual or as a parolee. There may be evidence available during the trial that will allow me to revisit that conclusion. [ 122 ] Mr. Brawn’s applications are dismissed. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia