R. v. M.N.T. Date:, 2016 BCPC 338

Citation: R. v. M.N.T. Date: 20161012 2016 BCPC 338 File No: 207435-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. M.N.T. (T., M.N.) RULING ON CHARTER APPLICATION OF THE HONOURABLE JUDGE J.G. COHEN Counsel for the Crown: A. Lee Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C. Date of Hearing: October 11 and 12, 2016 Date of Judgment: October 12, 2016

[ 1 ] The trial of this matter came on for hearing before me yesterday but, as a preliminary matter, the defendant applied for a judicial stay of proceedings based on the breach of his right to be tried within a reasonable time as guaranteed by

Section 11 of the Canadian Charter o f Rights and Freedoms . [ 2 ] The jurisprudence applicable to the issue of the failure to provide a trial within a reasonable time underwent a major change when the Supreme Court of Canada handed down the judgment in R. v. Jordan , 2016 SCC 27 , on July 8, 2016. Trial courts in Canada now have a much clearer direction as to what constitutes compliance with the obligation to provide a trial within a reasonable time as “presumptive time limits” have been fixed.

In the case before me, the presumptive time limit is 18 months from the day the charges were laid until the end of the trial. [ 3 ] Under this new jurisprudence, if a trial cannot be held within the presumptive time limit then there has been a breach of a defendant’s right to have a trial within a reasonable time and the court must stay the charges against the defendant.

However, missing a presumptive time limit may not result in a stay of proceedings if the prosecutor can show exceptional circumstances and, further, the presumptive time limit is calculated excluding any delay caused, attributable to or waived by the defendant. [ 4 ] The case before me is past that presumptive time limit in that it is already more than 24 months since the charges were laid and the trial has not yet started. Presumptively, I must stay these charges. [ 5 ] This is not the first time that the Supreme Court of Canada has directed trial courts to reign in the time to trial.

The last time such a direction was given to trial courts, there were tens of thousands of criminal charges that were stayed. In order to avoid this happening again, this time, trial courts are directed to apply the new presumptive time limits with some transitional rules. One part of those transitional rules directs that the prior jurisprudence will also have to be considered for cases that came into the system before the Jordan decision.

Therefore, as this case came into the system before the Jordan case was decided, I must consider both the new and the previously existing jurisprudence when deciding this application. [ 6 ] The facts relevant to the defendant’s application are: 1. The indictment was sworn on October 8, 2014 charging the defendant with sexual touching and sexual assault of his daughter during the years 2005 to 2008 contrary to sections 151 and 271 of the Criminal Code of Canada. October 8, 2014 is the date from which the 18 month presumptive time limit starts running; 2.

After the initial appearances, the trial was set for three days to commence on October 20, 2015. The initial appearances were held within a reasonable amount of time and neither party was responsible for any significant delay during this period of time. However, were it necessary to do so, I would attribute one month of delay during the initial appearances to the defendant. That is the only delay that I would attribute to the Defendant; 3. In preparation for trial, the prosecutor tried to contact the complainant by phoning the complainant’s mother.

The evidence is not clear as to when the prosecutor first tried to make contact with her however there is clear evidence that the prosecutor tried to contact the complainant by phoning and leaving a message with the complainant’s mother on October 1, 2015. That same day, the prosecutor contacted a police officer (the officer) to help contact the complainant; 4. The officer did the same thing that the prosecutor had done: she phoned the complainant’s mother and left a message; 5. On October 5 the prosecutor sent a letter to the complainant’s mother; 6.

On October 19 the complainant went in and was interviewed by the prosecutor; 7. During that interview, the complainant made significant new disclosures to the prosecutor; some of which may support new or different charges being laid while other parts of which may be of assistance to the defendant in his defense to the charges as laid; 8. The prosecutor decided that she had to have the new disclosures investigated by having the officer interview the complainant in a recorded setting. She instructed the complainant to make herself available for such an interview and the officer to conduct it; 9.

The prosecutor disclosed this turn of events to the defendant and to the court; 10. As a result of this, rather than start the trial the next day, the trial was adjourned to April 19, 2016; and 11. In a technical sense, the adjournment application made on October 20, 2015 was made by the defendant but it was not necessitated by him. I do not attribute this 6 month delay to the defendant. [ 7 ] If the trial had proceeded on April 19, 2016, then there would not have been any delay issue. However, the adjournment to April 19, 2016 was not the last adjournment of this trial. [ 8 ] The facts continue as follows: 1.

After the October 20, 2015 trial was adjourned, the officer made unsuccessful efforts to contact the complainant by phoning and leaving messages with the complainant’s mother. These messages went unreturned; 2. The complainant had no cell phone of her own; 3. In December 2015, the officer went to the complainant’s high school to talk to her directly. She met the complainant and told her

that they had to set up a time for the new interview. The complainant said she would talk to her mother and call the officer back; 4. When the officer met the complainant at her school, the complainant confirmed that her mother had not told her that the officer had been trying to contact her; 5. After the December meeting at the high school, the officer still did not hear back from the complainant or from her mother so the officer emailed this information to the prosecutor. The officer also left further messages on the complainant’s mother’s phone on January 27 and on February 26.

The prosecutor also wrote a letter to the complainant’s last known address; 6. In March, the officer learned of a new email address for the complainant’s mother so she wrote to that address on March 11, 2016; 7. The complainant’s mother replied to the March email in April and the date of April 14 was set up as the date to re-interview the complainant; 8. The complainant attended to be interviewed on April 14, but had not read her prior statement so the officer declined to interview her until she had done so. A new interview date was set for April 18; 9.

On April 18, the complainant was re-interviewed and that interview was recorded but that interview had taken place too late for the trial that was set to commence the next day; 10. The recording made of the interview of the complainant on April 18, 2016 was sent away for transcription on an expedited basis but that transcription was not done on any form of expedited basis and indeed it still had not been provided to the defendant as of the date that he filed his application for a stay of proceedings, September 11, 2016.

I assume it has been provided since, but I have no evidence before as to the date it was finally provided; 11. On April 18 (the day that the complainant was finally re-interviewed), the prosecutor applied to adjourn the trial set to commence the next day. That adjournment was granted. However, the defendant specifically reserved his charter delay rights. The trial was adjourned another 6 months; and 12. A new prosecutor was appointed for this matter for the October 2016 trial. [ 9 ] I find that the defendant in this matter is not responsible for any significant delay.

The calculation of time after any deduction for defense delay still leaves this case as being heard outside the presumptive time limit fixed in the Jordan case. [ 10 ] The prosecution however argues that the delay in this case is of the sort that may be excluded from the 18 month presumptive time limit in that it was caused by exceptional circumstances. [ 11 ] The Supreme Court of Canada in the Jordan case defined exceptional circumstances as those that lie outside the prosecutor’s control in that they are 1) reasonably unforeseen or reasonably unavoidable; and 2) they cannot reasonably be remedied. [ 12 ] In Jordan we are directed that exceptional circumstances will likely come in two forms: complex cases and discrete events.

Complex cases simply take longer and no other explanation is required if one of those cases takes longer than the presumptive time limits. [ 13 ] Without providing an exhaustive list of what constitutes the sort of discrete events that will justify missing the presumptive time limits, it is clear that things like a sudden illness or accident on the eve of trial or during trial could make a trial take longer.

The situation of a witness changing testimony while on the stand would also be a discrete event that would permit a trial to take longer. [ 14 ] In order to rule further on this issue I must first find what actually caused the six month adjournment granted in April of this year. [ 15 ] I find that the last adjournment was caused by the lack of contact between the prosecutor who then had conduct of this file and the complainant. This left both the prosecution and the defense unable properly to prepare for trial.

So, was this lack of contact caused by exceptional circumstances? [ 16 ] Before me there was evidence that the lack of contact arose because : the complainant had no cell phone of her own so it was reasonable to contact her through her mother; her mother had a blood clotting issue in her legs that required her to seek medical intervention; the complainant and her mother were arguing and as a result the complainant ran away for a week or 10 days; and, most importantly, the complainant’s mother was so depressed that she had secluded herself in her bedroom and was avoiding her responsibilities including responding to the officer’s messages. [ 17 ] The defendant says that the prosecutor and the officer should have known that contacting the complainant through her mother was not reasonable.

He argues that they should have realized that this was true once they talked to the complainant at her school and learned that the complainant’s mother was not communicating the officer’s messages through to the complainant. [ 18 ] The defendant also argues that the rest of the exceptional circumstances pleaded, when broken down and reviewed carefully, disclose that: the mother’s blood clotting issue was diagnosed more than 10 years previously and her only recent visit for medical intervention for that was in April of 2016; the allegation that the complainant ran away from home was actually little more than her staying at her boyfriend’s house, such that her whereabouts were never in question; and, while the mother does occasionally suffer from depression, this too is a long standing diagnosis and one that, when active, is treated with medications.

She was not being treated for depression during any of the six months between October 20, 2015 and April 19, 2016. [ 19 ] The Defendant argues that these do not amount to exceptional circumstances because they don’t meet the definitional

requirement that they be reasonably unforeseen or reasonably unavoidable. [20] The court was not convinced that the complainant’s mother’s depression was as severe as initially portrayed by her but wasconvinced that she and the complainant were not getting along. There was evidence that the complainant’s mother was not secludedaway in her bedroom for those 6 months but rather she was responsive to her personal needs in that she went out and collected her childand spousal support funds from the Defendant.

I find that she did go out to collect these funds as she admitted at first; even though shelater tried to retract that admission. I also note that no medical proof was put before the court about her depression. [21] On the jurisprudence as set out in Jordan, I find that there were no exceptional circumstances that justify the breach of thepresumptive time limit. The prosecutor and the officer knew where to find the complainant had they felt compelled to do so. Rather, I aminclined to find that there was a pervasive attitude that delay was unimportant.

If this case had entered the system after the Jordandecision had been handed down, it likely would have been handled very differently. [22] However, as this case entered the system before the Jordan case had been decided, I must also consider the transitional rules, inthat I must consider how this application would have been dealt with under the jurisprudence that existed prior to the Jordan case.

Werethe parties acting in a manner that was consistent with the existing law as it stood before the Jordan case? [23] Prior to the Jordan case, the jurisprudence about the right to a trial in a reasonable time was mostly set out in R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin, (SCC), [1992] 1 S.C.R. 771. Under that jurisprudence, as it hasbeen refined by the courts over the years, this trial should have been held within 13 months.

Under the prior jurisprudence, an applicationfor a stay of proceedings could have been made at any time after the October 2015 trial failed to proceed and certainly after the April2016 trial had to be adjourned.

However, under that prior jurisprudence, the 13 month time limit was but one factor among many that thecourts had to consider. [24] The other factors that arise in this case that would have been important under the prior existing jurisprudence include that: therewas nothing overly complex about this case; the delay was caused throughout by the prosecution not pursuing this case vigorously; thedelay was excessive; the delay was not caused by institutional factors; the defendant neither waived his rights nor was responsible for thedelay; and, finally, the Defendant suffered prejudice. [25] Under the prior jurisprudence, defense counsel would file an affidavit of the defendant setting out the prejudice that thedefendant had suffered while awaiting trial.

This was done in the case before me. This defendant swore an affidavit setting out howbeing accused of having sexually abused his own daughter has weighed on him in every facet of his life, including having had asignificantly detrimental effect on his physical health. [26] On all of the evidence before me, I find that the Defendant has proved that he has not had his trial in a reasonable time asguaranteed by our constitution and that the jurisprudence, both current and prior, is clear that this sort of breach is not otherwiseremediable but by way of a stay of proceedings.

That is the order I will make today. [27] I add only that this is not an easy decision for the court. It is never easy for a judge to deal with a matter on what some peoplemay call a technicality rather than on the merits of the case and, with much of that sentiment, I agree. [28] However, I must point out that the right to a trial within a reasonable time is not a technicality. As Justice Cromwell put it atparagraph 142 of the Jordan decision: “Every person charged with an offence in Canada has a constitutional right to be tried within a reasonable time: Canadian Charter ofRights and Freedoms, s. 11 (b).

The right has ancient origins and finds expression across legal systems.

In the Great Charter of 1215(the Magna Carta) the King promised that “[t]o no one will we . . . delay right or justice …” And Justice Cromwell continued: “A right of this nature is also found in the United States, New Zealand, Australia, India, South Africa, the Caribbean, the UnitedKingdom, Ireland, and in the European Union, among others: …” [29] The right to a trial within a reasonable time is not a technicality; it is a fundamental, ancient and basic right of citizens ofdemocratic societies that the Supreme Court of Canada has directed that trial courts must properly respect. [30] On the basis of all of the above, the judicial stay of proceedings is granted.

By the court: Judge J.G. Cohen