R v Homa, 2023 ABKB 45

Court of King’s Bench of Alberta Citation: R v Homa, 2023 ABKB 45 Date: 20230123 Docket: 181101965Q2 Registry: Peace River Between: His Majesty the King Crown - and - Terrence Homa Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice James T. Neilson _______________________________________________________ [ 1 ] The Defendant, Terrence Homa, makes application for a stay of the proceedings against him due to delay, which infringes his right to be tried within a reasonable period of time as guaranteed by s 11(

b) of the Charter of Rights and Freedoms . [ 2 ] The Information against Homa was sworn on September 10, 2018. This case was set for a trial by judge and jury in Peace River on September 13 to 15, 2022. However, upon the application of the Defendant, these trial dates were adjourned so that the Defendant could proceed with the delay application and the Crown would be permitted to respond. [ 3 ] I was appointed the Case Management Justice by the Chief Justice pursuant to s 551.1 of the Criminal Code in order to hear

the Defendant’s application under s 11(

b) of the Charter . [ 4 ] Materials were submitted detailing the history of this case since September 10, 2018, consisting of Court records, transcripts of proceedings, and correspondence between counsel and the Court. Counsel made submissions to me on October 28, 2022. Crown counsel was permitted a further period of time to obtain evidence relating to any attempts to serve the Defendant after the Information was sworn, and the communications resulting in the setting of the trial dates for September 13 to 15, 2022.

In this regard, I was provided with an affidavit of non-service of Constable Jessica Roy sworn on November 17, 2022, and the affidavit of Krista Massier, a legal assistant at the Prosecutor’s office in Peace River, Alberta, sworn on November 16, 2022. [ 5 ] Defence counsel advised that he would not be making any further submissions following receipt of these affidavits from Crown counsel. [ 6 ] The Crown respondent does not take issue with the thirty month presumptive ceiling established in R v Jordan , 2016 SCC 27 for cases proceeding through to trial at Superior Court.

The Supreme Court in Jordan also stated that exceptional circumstances may be found which affect the overall calculation of delay. All justice system participants must be proactive in trying to mitigate delay. [ 7 ] The Information sworn on September 10, 2018 provided that the informant had reasonable grounds to believe that the Defendant: on count 1, that on or between September 1, 2015 and June 30, 2016 at Peace River, Alberta, for a sexual purpose touched the claimant, a person under the age of sixteen years contrary to

section 151 of the Criminal Code ; and on count 2, provide that during the same period of time at Peace River, Alberta, the Defendant committed a sexual assault against the claimant contrary to

section 271 of the Criminal Code . [ 8 ] The parties agree that, as for the relevant timeline, the clock started to run from the date the Information was sworn, September 10, 2018. [ 9 ] The affidavit of non-service of Constable Roy indicates a number of attempts to locate Homa in Alberta and British Columbia, including attempts to contact by telephone. However, there is no evidence that Homa had been served with notice of the proceedings being brought against him. In the absence of such evidence, there was nothing compelling Homa to come to Court. [ 10 ] The matter was before the Court on November 19, 2018.

There was no service and the Court lost jurisdiction.

On January 21, 2019, there was no service and jurisdiction was lost. [ 11 ] On February 28, 2019, there was no service and a warrant was issued in the public interest. [ 12 ] Ultimately, the warrant was served and counsel appeared on behalf of Homa in Court on October 7, 2019. [ 13 ] I find that the delay from September 10, 2018, to October 7, 2019, was not attributable to the Defence, as Homa had not been served with process and, accordingly, there was no requirement for him to appear in Court in response. [ 14 ] On November 18, 2019, a preliminary inquiry was set for April 15, 2020.

This is not a Defence delay. [ 15 ] The Preliminary Inquiry did not proceed on April 15, 2020, however, because the Courts were shut down in late March 2020 due to the Covid pandemic. There was a ten week adjournment for all matters involving people not in custody, from March 16, 2020. It is agreed by counsel that the delay resulting from the Covid shutdown was an exceptional circumstance.

This has been recognized in other cases, including R v Ghraizi , 2022 ABCA 96 at paras 5 , 12, 13 and 14, and R v Clifford , 2022 ABQB 509 at paras 11 and 14 . [ 16 ] No one was present for the Accused on June 29, 2020 and there was an adjournment to August 10, 2020.

There was no explanation other than, perhaps, a backlog of cases at that time. [ 17 ] The Defence concedes that for the period April 15, 2020 to August 10, 2020 the Covid closing was an exceptional circumstance that the Court may take into account, under R v Jordan . [ 18 ] On May 25, 2021, the Preliminary Inquiry was set for December 1, 2021. [ 19 ] The Crown had submitted that exceptional circumstances in this instance should be calculated from the last day of the Court closure plus another six months, being a reasonable period of time for the Crown and Court to organize this and all other cases that had been previously adjourned due to the Court closure.

There was no specific authority cited for a six month allowance as urged by Crown counsel. However, during the submissions before me, it was conceded by the Defence that the period from April 15, 2020 to May 25, 2021 should be considered to be an exceptional delay and/or Defence delay, and therefore deducted from the thirty month presumptive delay established by the Supreme Court of Canada in Jordan .

This concession by the Defence effectively includes the additional period of six months following the Covid Court closure that had been urged by the Crown. [ 20 ] The Court had no available time for the Preliminary Inquiry up to November 23, 2021 so any delay to that date after May 25, 2021 was not attributable to the Defence. [ 21 ] The Defence was not available from November 23 to December 1, 2021. However, this six day period was reasonable in the circumstances and not attributable to the Defence. [ 22 ] On December 1, 2021, the Defence conceded the committal to the Court of Queen’s Bench.

At that point, the Defence submits, and I find, that the delay was twenty-five months and fifteen days not attributable to the Defence, of the thirty-eight month delay total to that time. [ 23 ] The Queen’s Bench Appearance Court Arraignment was on January 10, 2022. Counsel had previously arranged on January 7, 2022 for a three day trial by Judge and Jury on September 13 to 15, 2022.

[ 24 ] The Crown submits that the delay from January 10, 2022 to September 13, 2022 should be attributable to the Defence. However, in reviewing the correspondence between counsel and the Court Coordinator, I find that this period of delay is not attributable to the Defence, given the attempts that were made to settle upon the agreeable trial dates. Before January 10, 2022, the Crown indicated that its witness, Constable Roy, was unavailable for February 2022 and March 21 to 23, 2022. On January 6, 2022 at 12:05 p.m., Defence counsel’s office advised the Court and counsel that Mr.

Corbett was available on the following dates until year end in 2022: May 17 – 20 May 25 – 27 May 30 – June 3 July 12 – 15 July 18 – 19, 21 – 22, 28 – 29 August 2 – 5 August 29 – September 2 September full availability [ 25 ] The Court Coordinator responded on January 6, 2022 that the following dates were available with the Court for a three day Judge and Jury trial in 2022 at Peace River: March 2 – 4 April 12 – 14 May 2 – 4 May 3 – 5 June 28 – 30 [ 26 ] The Court then noted that there were no summer trial courts in the regions. [ 27 ] The next available trial dates in the Court Calendar after the summer recess were September 13 – 15, 2022.

After canvassing dates, both Crown and Defence were available on September 13 – 15, 2022 for trial and a Pre-Trial Conference was to be held on March 18, 2022. These dates were confirmed by Defence counsel in a letter to the Court dated January 7, 2022.

As the dates were pre-booked, the scheduling of the trial was removed from the QBAC list on January 10, 2022. [ 28 ] Therefore, although Defence counsel was not available for proposed dates by the Court Coordinator before September 2022, by the same token, the Court could not accommodate the dates proposed by Defence counsel in May and June 2022, and the Court was not sitting during the dates proposed by Defence counsel during the summer months.

There was no indication on the file as to the availability or otherwise of Crown counsel for the proposed trial dates, but the correspondence indicates that the Crown and Defence were agreed on scheduling the trial from September 13 to 15, 2022. I find that the Defence was not responsible for this period of delay, given the attempts by Crown and Defence and the Court Coordinator to arrive at the first available trial date available to both Crown and Defence and the Court schedule. The Defence was not trying to push the delay over thirty months.

The Defence did not acquiesce nor did it cause the delay in that time period. [ 29 ] An application was made by the Defence for an adjournment of the trial to begin September 13, 2022 in order to bring a Charter s 11(

b) delay application. The adjournment application was heard and granted by Justice Germain on September 2, 2022. The Defence concedes that the adjournment was at the request of the Defence and any delay after September 2, 2022 is the Defence’s delay. [ 30 ] The request for case management was made by counsel to the Chief Justice who then appointed me to hear this application as the Case Management Justice.

Conclusion [ 31 ] In reviewing the entire history of this case since the Information was sworn on September 10, 2018, I find that the total delay from September 10, 2018 to September 2, 2022 is forty-eight months minus six days.

Subtracting thirteen months, the period from April 15, 2020 to May 25, 2021 for the Covid delay and Defence’s conceded unavailability leaves a thirty-five month delay, beyond the presumptive thirty month limit established by the Supreme Court in Jordan . [ 32 ] Accordingly, I conclude that this delay infringes the Defendant’s right to be tried within a reasonable period of time, as guaranteed by s 11(

b) of the Charter of Rights and Freedoms . [ 33 ] I grant the requested stay. Heard on the 28 th day of October, 2022.

Dated at the Town of Peace River, Alberta this 23 rd day of January, 2023. James T. Neilson J.C.K.B.A. Appearances: David Sherwin for the Crown Austin Corbett for the Accused