R. v. M.M. Date:, 2017 BCPC 239

Citation: R. v. M.M. Date: 20170816 2017 BCPC 239 File No: 2002-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. M.M. RULING ON A CHARTER APPLICATION OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: D. Lawrence Place of Hearing: Sechelt , B.C. Dates of Hearing: June 9, and July 5, 2017 Date of Judgment: August 16, 2017

[ 1 ] Pursuant to My Reasons for Judgment of May 17, 2017, M.M. has been found guilty of sexually assaulting L.D-K (hereinafter referred to as “LDK”), touching LDK for a sexual purpose and for a sexual purpose inviting LDK to touch him. M.M. was also found guilty of communicating with LDK by telecommunication for the purpose of facilitating the commission of an offence under

Section 151 or 152 of the Criminal Code . [ 2 ] This is an Application by M.M. for judicial stay of proceedings of the charges against him on the ground that his Charter rights under

Section 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed. [ 3 ] Crown and defence agree that the amount of delay in this case is below the 18-month ceiling referred to in R. v. Jordan , 2016 SCC 27 . Crown counsel submits that the delay in this case is 13 months; defence submits that the delay is approximately 15 months.

BREAKDOWN OF TIME FROM THE SWEARING IN OF THE INFORMATION TO DECISION September 21, 2015 Information sworn October 14, 2015 First appearance November 18, 2015 Arraignment hearing December 9, 2015 Arraignment hearing December 23, 2015 Arraignment hearing/trial date fixed June 28 to 30, 2016 First trial dates Crown case completed and one defence witness called June 29 lost due to defence illness 9 months and 9 days August 11, 2016 Second trial date Court date cancelled 10 months and 21 days October 4, 2016 Third trial date adjourned Lack of court time 12 months and 13 days November 15, 2016 Fourth trial date Adjournment due to a possible issue that might have affected the defence 13 months and 25 days December 7, 2016 Fixed date for continuation 14 months and 16 days May 2, 2017 Fifth trial date Evidence and submissions completed 19 months and 11 days May 17, 2017 Decision 19 months and 26 days DELAY TO BE SUBTRACTED FROM TOTAL DELAY June 29, 2016 to August 22, 2016 Delay lost to defence illness 42 days November 15, 2016 to December 7, 2016 Time required to investigate matter that might have affected the conduct of the defence 22 days May 2, 2017 to May 17, 2017 Time required for decision 15 days [ 4 ] Both counsel agree that the total time period noted above of 79 days ought to be subtracted from the total time to trial of 19 months and 26 days.

Counsel do not agree on the amount of time that should be subtracted between December 7, 2016 and May 2, 2017. On December 7, 2016, defence counsel stated that the defence had concluded its investigations and was prepared to continue with the trial. However, the Court was unable to accommodate the continuation of the trial until May 2, 2017. This portion of the delay was a product of systematic limitations in the court system and not of the discreet event. Therefore these months should not be deducted.

Accordingly, it is my judgment that the total delay in this case is 17 months 7 days. That is, the 19 months and 26 days from the date the Information was sworn to the date of the decision minus the time lost due to the defence illness, the time required to investigate a matter that might have affected the conduct of the defence, and the time for decision (see R. v. Cody , 2017 SCC 31 , at para. 55 ). ANALYSIS [ 5 ] A delay may be unreasonable even it falls below the presumptive ceiling of 18 months. The defence bears the onus to show that the delay is unreasonable.

To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the Application must fail. A stay of proceedings in a case which falls below the presumptive ceiling is to be granted only in clear cases (see R. v. Jordan , 2016 SCC 27 , at paras. 82 and 83 ). [ 6 ] I am satisfied that the defence did more than simply put on the record that it wanted an earlier trial date.

The defence took a reasonable amount of time to review disclosure and set a trial date. On the December 23, 2015 appearance, defence counsel expressed concern regarding the ability of the Court to complete the case in the estimated two days, because of what defence counsel described as “the often tumultuous nature of the list in Sechelt” and sought an additional day. That request was agreed to by the Crown and approved by the Court. Defence was also available for the offered continuation dates of August 11, 2016, October 4, 2016, and November 15, 2016.

I am also satisfied that the defence was cooperative with and responsive to the Crown and the Court. I do note however that this Application was not filed until a few days prior to the May 2, 2017 continuation date. While that is a factor, defence counsel did advise both the Crown and the Court on December 7, 2016 that the earliest possible continuation date should be set and that if an earlier date did become available, that he be contacted to discuss the possibility of having this matter proceed prior to May 2, 2017. Given the Supreme Court of Canada’s direction in R. v.

Jordan , the fact that this is a youth case and this was a trial continuation, I find the defence gave sufficient and timely notice to the Crown that the delay was becoming a problem. The defence is required to act reasonably and not perfectly (see R. v. Jordan , at para. 85 ). [ 7 ] The issue now becomes whether the defence can establish that the time that this case has taken markedly exceeds the reasonable time requirements of the case.

The reasonable time requirements of a case derive from a variety of factors including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. [ 8 ] In considering the reasonable time requirements of a case, I must employ the knowledge I have of this jurisdiction including how long a case like this type typically takes to get to trial in light of the relevant local and systematic circumstances.

Where the Crown has done its parts to ensure that the matter proceeds expeditiously – including genuinely responding to defence’s efforts, seeking opportunities to streamline the issues and evidence, and adapting to the evolving circumstances of the case as it progresses – it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. I am not to parse each day or month to determine whether each step was reasonably required.

Instead I must step back from the minutiae and adopt a bird’s eye view of the case (see R. v. Jordan , paras. 87 to 91 ). [ 9 ] Youth cases should not take in excess of 17 months to complete. That said, I recognize that this matter may very well have been completed in June of 2016 but for the one day lost due to the defence counsel’s illness. However, it should not have taken four continuation dates to complete the trial. There is no question that the November 15, 2016 trial had to be adjourned to permit the defence to investigate an issue that might have affected the defence.

It was completely appropriate for the Crown to agree to the trial being adjourned on November 15, 2016. The time from December 7, 2016 to May 2, 2017 is very concerning. However, I am satisfied that the Crown has done its part to ensure that this trial proceeded expeditiously. The Crown agreed to the additional day being sought by the defence when the case was set for trial. The Crown was available for the August, October, and November continuation dates. The Crown suggested earlier continuation dates in 2017 and it was a lack of judicial resources that prevented the case from continuing prior to May 2, 2017.

It is very troubling that when the defence was prepared to set the continuation date on December 7, 2016, the first available date was almost five months later. It took nine months to get the first three days of trial and ten months to get the matter completed. [ 10 ] This is a very close case. It is my judgment that this trial took longer to complete than it should have. This trial should have been completed no later than February 2017.

The question is, however, has the defence established that the time this case has taken, markedly exceeded the reasonable time requirements of the case? [ 11 ] What sways the balance is this: 1. The Crown has acted reasonably as that term is defined in R. v. Jordan . 2. The November 2016 adjournment was unforeseen and unavoidable. 3. The discreet event which necessitated the November 2016 adjournment occurred approximately 13 ½ months after the Information was sworn.

When issues arise closer to the presumptive ceiling, it may be more difficult, as it was in this case, for the Court to respond in a timely fashion. 4. Stays beneath the ceiling are to be granted only in clear cases. [ 12 ] So while I agree that this case has taken longer than it should have because of the factors I have just referred to, I am not satisfied that the defence has established that the time this case has taken markedly exceeded the reasonable time requirements of the case. Accordingly, the application is dismissed. ______________________________ The Honourable Judge S.M. Merrick

Provincial Court of British Columbia