R. v. Sepka Date:, 2017 BCPC 356

Citation: R. v. Sepka Date: 20171020 2017 BCPC 356 File No: 215195-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. RYAN MATTHEW SEPKA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: A. Lee Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey , B.C. Date of Hearing: October 16, 2017 Date of Judgment: October 20, 2017

[ 1 ] THE COURT : The accused, Ryan Sepka, has been charged with assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . [ 2 ] He has made an application for a finding that his right to be tried within a reasonable time, as enshrined in s. 11(

b) of the Canadian Charter of Rights and Freedoms , has been infringed. The remedy sought for the asserted infringement is a stay of proceedings pursuant to s. 24(1) of the Charter . [ 3 ] On July 8th, 2016, the Supreme Court of Canada, in R. v. Jordan , reconstituted the analytical framework for assessing whether an accused's s. 11(

b) Charter right has been infringed. A guideline of 18 months from the swearing of the Information to the conclusion of the matter was established as the outside time limit for a case to proceed in Provincial Court. [ 4 ] In Mr. Sepka's case, the total delay is approximately 20 months. If an insufficient amount of the delay is attributable to the defence and there are no exceptional circumstances that justify concluding the matter outside of the 18-month guideline, then a stay of proceedings ought to be entered.

However, Crown counsel argues that some of the delay can be attributable to defence conduct and when that delay is deducted, the case is still within the 18-month guideline. [ 5 ] Crown counsel also argues that transitional considerations ought to be considered as over four months of the history of the matter took place before the Jordan framework was established. These transitional considerations, it is suggested, could ameliorate the delay to a degree. [ 6 ] These are my reasons for judgment on the application. THE LAW: R. v.

JORDAN [ 7 ] In Jordan, it was recognized that an unreasonable delay in bringing an accused to trial denies justice to all interested parties: accused, victims and their families, and the public as a whole. The court recognized that the expediency in which a case ought to proceed through the court system was not being achieved because a culture of complacency had seeped into modern-day criminal litigation. To change that culture, the court created a new analytical framework to measure whether an accused had a trial within a reasonable time.

The new analytical framework contains a ceiling of 18 months for a matter to complete in Provincial Court, after which it is presumed an unreasonable delay has occurred, subject to certain considerations and exceptions. That analytical framework, with the exception of delay applications where the delay is under the 18-month ceiling, is as follows. [ 8 ] The total delay from the charge to the actual or anticipated end of trial must be calculated. Once the total delay is determined, delay attributable to the defence must be subtracted. Defence delay has two components. The first is delay waived by the defence.

Such waiver, although capable of being made explicitly or implicitly, must, in either case, be clear and unequivocal. Second, is delay caused solely by the conduct of the defence? These are situations where the accused's acts either directly caused the delay or are a deliberate and calculated tactic employed to delay the trial. [ 9 ] In discussing defence delay in the context of Mr.

Sepka's case, it is worth quoting from paragraphs 64 and 65 of Jordan , as these passages relate to some points of contention between the parties. [ 10 ] Paragraphs 64 and 65 state in part: …The defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.

And continuing at paragraph 65: …To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.

While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [ 11 ] If the remaining delay, once defence delay is subtracted, is above the 18-month ceiling, there is a strong presumption that the delay is unreasonable. The onus then shifts to the Crown to rebut this presumption by showing that exceptional circumstances make the delay reasonable. [ 12 ] Exceptional circumstances are those that lie outside of the Crown's control and that, (1) they are either reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays those circumstances present once they arise. In general, exceptional circumstances fall under two categories: discreet events and particularly complex cases. [ 13 ] The period of delay caused by any discreet exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Although discreet events may arise, Crown counsel particularly, and the justice system generally, must be prepared to mitigate the delay resulting from the discreet exceptional circumstance.

Furthermore, Jordan makes clear that once the ceiling is breached, it is not enough for the Crown to point to a past difficulty as the cause of some delay. Rather, the Crown must also show it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling, regardless of whether those steps were ultimately successful. [ 14 ] For cases that were already in the justice system before Jordan was pronounced, which a portion of the present case was, the 18-month presumptive ceiling applies, but with some qualifications: Where the delay exceeds the ceiling, a transitional exceptional

circumstance will apply if the Crown satisfies the court that the time the case has taken is justified, based on the parties' reasonablereliance on the law as it existed prior to Jordan. This requires a contextual assessment that considers how the previous framework,primarily outlined in R. v. Morin, (SCC), [1992] 1 S.C.R. 771 was applied. "The reasonableness of a period of time toprosecute a case takes its colour from the surrounding circumstances.

Reliance on the law as it then stood is one such circumstance."(para. 103). [15] That framework considered, for example, prejudice and the seriousness of the offence as important considerations. For casescurrently in the justice system, these considerations can inform whether the parties' reliance on the previous state of the law wasreasonable.

Along this theme, the court in Jordan stated: Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in therelevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of thecase for cases currently in the system. (para. 100). [16] And at paragraph 102: Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what wouldpreviously have been considered a reasonable delay into an unreasonable one. [17] However, as also stated in Jordan: Of course if the parties have had time, following the release of this decision, to correct their behaviour, and the system has had some timeto adapt, the trial judge should take this into account. (para. 96). [18] I will now turn to the history of the proceedings in Mr.

Sepka's case as the analytical framework to be applied requires aconsideration of the total delay and the reasons for it. PROCEDURAL HISTORY [19] The total delay in this matter is 20 months and five days. More specifically, it amounts to 66 days over the 18-month limit. That period can be broken down as follows. [20] The Information charging Mr. Sepka was sworn February 26th, 2016. A Summons was issued compelling his attendance incourt May 11th, 2016. On May 11th, 2016, Mr. Sepka made his first appearance in court in response to the Summons.

The matter wasadjourned to May 24th, 2016, as disclosure was not ready to be made by the Crown. On May 24th, 2016, disclosure was received. Onthat same day, defence counsel requested by letter the following disclosure: 7) A copy of all audio and video capturing our client's statements and movements while in police custody; and 8) Audio and transcripts of any 9-1-1 calls made related to this matter. [21] The proceedings were adjourned from May 24th, 2016 to July 15th, 2016, with an appearance in between for the defence tocomplete its review of the disclosure and receive instructions from Mr. Sepka how to proceed.

Fixing a date for trial was adjournedfrom July 5th to the 19th, 2016. [22] In the meantime, on July 17th, 2016, defence counsel wrote to Crown counsel, commencing resolution discussions. In thecourse of doing so, defence counsel mentioned identification as an issue in the case. Between July 19th, 2016 and August 29th, 2016,resolution discussions took place that were ultimately unsuccessful. [23] On August 9th, 2016, the matter was adjourned to August 30th, 2016 for trial Crown to be assigned and for arraignment, givencounsel were unable to resolve the case.

It was agreed that two-and-a-half days for trial would be required. [24] On August 30th, 2016, defence counsel attended the office of the Judicial Case Manager to set trial dates. Ultimately, trialdates of July 17th to July 19th, 2017 were arranged. Defence counsel was available all of January 2017, except for two days. Neitherdefence counsel nor Crown counsel were available on an offered date of March 6th, 2017.

Defence counsel was available the latter halfof March and the first two weeks of April, 2017; however, he was advised by the Judicial Case Manager that there was either no courttime or unavailable police witnesses during that time period. May 23rd, 2017 was offered, but again, neither the Crown nor defence wereavailable. The next date offered was May 29th, 2017; however, defence counsel had prior trial commitments that day and so was unableto commit to the offered date.

The next dates that were offered were accepted by all parties, those being the trial dates mentioned of July17th to July 19th, 2017. [25] On June 7th, 2017, additional particulars were provided by the Crown to defence counsel.

On June 28th, 2017, defence counselemailed Crown counsel, reminding Crown counsel that the defence had not been provided copies of the 9-1-1 audio or transcriptions thathad initially been requested over a year previous, on May 24th, 2016. [26] On July 4th, 2017, approximately two weeks prior to trial, Crown counsel emailed defence counsel to advise that the 9-1-1recordings were no longer available as two years had passed since they were made. [27] On July 14th, 2017, which was the Friday before the Monday start of the trial, Crown counsel advised defence counsel of theexistence of new disclosure that consisted of a video of Mr.

Sepka attending the police station and speaking with an investigating officerabout the case. That afternoon, defence counsel attended at the Surrey Provincial Crown office to obtain the disclosure. [28] On the morning of trial, July 17th, 2017, defence counsel applied for an adjournment, based on the late disclosure. Theadjournment was granted, and counsel attended at the Judicial Case Manager's office. The judge hearing the adjournment application

requested that the "earliest possible dates" be obtained to commence the trial. Indeed, the earliest possible dates that were offered were accepted by both Crown and the defence, and the trial was rescheduled then for October 30th and 31st, 2017. POSITION OF THE PARTIES [ 29 ] Defence counsel argues that none of the delay can be attributed to its actions, and therefore no deductions ought to be made from the over 20 months anticipated for the duration of the proceedings. [ 30 ] On the other hand, Crown counsel argues that three periods ought to be deducted from the overall time.

In particular, Crown counsel submits that the time taken for resolution discussion, which it pinpoints as July 5th to August 9th, 2016, ought to be deducted. Secondly, that the period of time from May 29th, 2017, when trial time was offered but defence counsel was unavailable due to a prior trial commitment, to July 17th, 2017, the date eventually set for the first day of trial, ought to be deducted. Finally, it is argued that some deduction ought to be made for a failure to mitigate the delay caused by the July 17th, 2017, adjournment.

In particular, Crown counsel argues that some of the two-and-a-half days of court time could have been used. This would have resulted in less court time being required for the rescheduled dates, which in turn may have resulted in earlier dates being available to complete the trial. [ 31 ] Additionally, Crown counsel submits that the court may wish to take into account transitional considerations, given the case started prior to the Jordan decision being handed down. ANALYSIS I.

Resolution Discussions: July 5 - August 9, 2016 [ 32 ] Crown counsel submitted the period of time to be deducted for resolution discussions was July 5th to August 9th, 2016. According to the history of the case, as noted below, July 17th, 2017 was the date when defence counsel wrote to Crown counsel suggesting a resolution. Regardless of the period when resolution discussions took place, I do not agree that the time taken for resolution discussions ought to be deducted. In R. v.

Anthony-Cook (2016), SCC 43, Justice Moldaver, who also wrote the majority decision in Jordan , stated in the opening paragraph: [1] Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they are essential.

Properly conducted, they permit the system to function smoothly and efficiently. [ 33 ] Justice Moldaver went on to describe plea agreements, which are the result of resolution discussions, as "vitally important to the well-being of our criminal justice system, as well as our justice system at large." (para. 25). [ 34 ] Anthony-Cook sets out the law relating to joint submissions on sentence.

The court, however, clearly stated at paragraph 2 of that decision, that joint submissions on sentence "are a subset of resolution discussions." The comments made about the utility of joint submissions on sentence apply equally to resolution discussions generally, as joint submissions on sentence cannot occur without resolution discussions. [ 35 ] In Anthony-Cook , the court acknowledged what lawyers, judges and court administrators have recognized for years; that resolving cases without the need for a trial benefits not only the accused, but also victims, witnesses, counsel and the administration of justice generally.

For a discussion of how these parties benefit, see paragraphs 35 to 40 of Anthony-Cook . As stated at paragraph 40 of that decision: Guilty pleas save the justice system precious time, resources, and expenses, which can be channelled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function.

Without them, our justice system would be brought to its knees, and eventually collapse under its own weight. [ 36 ] With this context in mind, it is clear that engaging in resolution discussions is not only a legitimate pursuit; it is a necessary pursuit for the proper functioning of the criminal justice system. This is particularly so in Provincial Court, where the high volume of cases, even with considerable collapse rates, consistently challenges court resources to accommodate them. [ 37 ] Crown counsel relies on the case of R. v. Porter , [2016] O.J.

No. 5953 as authority for its submission that resolution discussions fall at the feet of the defence in any delay calculation. With respect, in my view, Porter is not so simple.

Porter takes place prior to the judgment in Jordan ; consequently, it was a "transitional exceptional circumstance case in its entirety." The court in Porter deducted the period of time taken for resolution discussions, because under the pre- Jordan regime, the court found the parties reasonably expected, because it was the prevailing legal culture at the time, that the time taken for resolution discussions would not count against the State.

Rather, it was reasonable for the Crown to have understood, under the previous regime, that any adjournment for resolution discussions would be attributed to the defence, or would be characterized as a neutral factor.

In other words, the resolution discussions were deducted because the court found that that was the expectation of the parties. [ 38 ] That is not the situation before this court, where the majority of this case has taken place post Jordan , and therefore the parties were aware that the clock was ticking toward the 18-month guideline while those discussions were taking place. [ 39 ] In conclusion, the resolution discussions were a necessary and important part of the process of concluding whether the matter ought to have been set for trial.

These discussions were undertaken by the Crown and defence, who both served to gain if an appropriate resolution could have been achieved. As such, the discussions were a legitimate part of the process. The amount of time taken for resolution discussions was not excessive or being manipulated by the defence to deliberately lengthen the time to trial. Any time taken for them ought not to be deducted from the total time period. II. THE UNAVAILABILITY OF THE DEFENCE ON THE OFFERED TRIAL DATE OF MAY 29, 2017

[40] The delay from the offered date of May 29th, 2017, to dates that were accepted for the first trial, being July 17th to the 19th,2017, is 49 days. Even if this delay were attributed to the defence due to its unavailability, and thus deducted from the 20-month andfive-day period, this case would still exceed the 18-month guideline. The strong presumption of a stay of proceedings would still exist. Consequently, my conclusions regarding this delay are not determinative of the outcome of the case.

Nevertheless, I will address it. [41] I do not find that there has been any attempt by the defence to delay proceedings in this matter, or that the actions or inaction bythe defence is inconsistent with the desire for a timely trial. This distinguishes the present case from those referred to by Crown counselto support its position that the defence unavailability on the May 29th, 2017 offering, and the resulting delay between then and the firsttrial date, ought to be deducted. [42] In R. v. Coulter, 2016 ONCA 704 , [2016] O.J.

No. 5005 defence counsel was available when earlier trial dates wereoffered, but did not take them. Furthermore, the trial was adjourned because defence counsel scheduled it too close to a jury trial,resulting in a scheduling conflict when the jury trial did not complete by the time Mr. Coulter's trial was to start. [43] In R. v. Mouchayleh, 2017 NSCA 51, a similar issue to the one before this court arose whereby the original trial was adjourneddue to late disclosure. In attempting to set a new trial, a new trial date was offered but not accepted by defence counsel because of aprevious court commitment.

Interestingly, at paragraph 23 of that decision, the Nova Scotia Court of Appeal acknowledged that it wouldbe unreasonable to expect counsel to commit to the new trial when he was already scheduled to be in a trial that morning. However, thecourt went on to note that non-trial court obligations should be rescheduled to give way to trials in the post-Jordan environment. (para.26). [44] As noted in R. v. Albanowski, 2017 ONSC 2260: Defence counsel are bound by the solicitor/client paradigm. They do not have the option of compromising one client's interests foranother. (para. 25).

In other words, accepting a trial date on which a trial is already scheduled will result in an adjournment of the already-scheduled trial,thereby incurring delay and compromising that client's interest. It becomes a trial scheduling Ponzi scheme where someone eventuallyloses. [45] Furthermore, the practical reality of criminal litigation in Provincial Court, be it for Crown counsel or defence counsel, is thatthey typically have multiple cases that they have carriage of. When discussing counsel availability under the pre-Jordan regime, JusticeCromwell stated, in R. v.

Godin: Scheduling requires reasonable availability and reasonable cooperation. It does not, for s. 11(

b) purposes, require defence counsel tohold themselves in a state of perpetual availability. (para. 23). [46] I see no reason why this sentiment should not survive the Jordan realignment. (See Albanowski at paragraph 27.) [47] Defence counsel had reasonable availability and was reasonably cooperative. That reasonable availability was for significantperiods of time prior to the May 29th, 2017 date that was declined just not on the other dates that were offered.

But for reasons beyonddefence counsel's control, trial time was not offered during those periods of availability. [48] In conclusion, I would not deduct from the total time calculation the period of time between May 29th, 2017 trial date whendefence counsel was not available, and the July 17th, 2017 trial date. III.

Mitigating the Delay Caused by the Adjournment of the July 17 - 19, 2017 Trial [49] Crown counsel concedes that the late disclosure provided to defence counsel on the Friday before the Monday start of the trialwas relevant and could affect a material issue at trial that had been identified early in the process by the defence, that being identificationof the accused.

Consequently, Crown counsel concedes that the adjournment was caused by the actions of the Crown. [50] However, the Crown argues that some of the approximately three-and-a-half-month delay between trial dates could have beenreduced if some of the original trial time had been used. For example, if one day of scheduled trial time could have been used, thenperhaps just one additional day would have been required to complete the trial, which may have been easier to obtain than two days. This was not a suggestion made at the time of the adjournment. Neither Crown nor defence made that suggestion.

Rather, this is an ideathat has arisen in hindsight. [51] It is not clear that use of any of the trial time was a viable option. An issue identified by defence counsel and conveyed to theCrown, being an issue at trial, was the identification of Mr. Sepka as the perpetrator of the offence. The late disclosure was a video ofMr. Sepka attending the police station and speaking with an investigating officer about the case. This new disclosure would haveaffected the theory of the defence as it existed at the time, and by virtue of the nature of that theory, would have potentially engagedethical considerations.

This would not have been insignificant to the defence. The ramifications of the late disclosure would havepermeated the defence and, potentially, the examination of most of the Crown witnesses. Consequently, it is not a certainty that any ofthe initial trial time could have been used, had the parties averted to the possibility of using what they could of it. [52] Another concern I have of making a deduction based on a failure to mitigate is that no evidence has been placed before the courtof how soon earlier trial dates could have been obtained if the time estimate was less.

For example, would one day of trial time havebeen available before the two days that were ultimately obtained at the end of October 2017? It is also difficult to determine how muchof a deduction ought to be made, even if some deduction was merited, in the absence of that information. [53] Crown counsel relied on Mouchayleh as an example of a failure to mitigate being a factor in a post-Jordan unreasonable delayapplication where new disclosure prompted an adjournment application.

However, in Mouchayleh, the court concluded that it was clearby the defence actions and inaction that they did not desire a timely trial. Furthermore, that there was no evidence that the new

disclosure that prompted the adjournment application would have any impact on the defence. These are significant distinguishing features from the case before this court. [ 54 ] Under the circumstances, I decline to make a deduction from the total time, based on a failure to mitigate the delay arising from the adjournment of the first trial date. IV. Conclusion Regarding Deduction Due to Defence Conduct [ 55 ] In conclusion, I would not deduct from the total time taken for the matter to proceed to the anticipated conclusion of trial, 20 months and five days, any time as a result of the actions of the defence.

Therefore, it must be determined whether exceptional circumstances take the case below the 18-month threshold. V. Exceptional Circumstances [ 56 ] Neither party suggests Mr. Sepka's case is complex or that there have been any discreet events that have contributed to the delay. VI. Transitional Exceptional Circumstances [ 57 ] The Information charging Mr. Sepka was sworn February 26th, 2016. The Jordan decision was handed down July 8th, 2016. The period between the two amounts to four months and ten days.

Consequently, four months and ten days of the 20 months and five days took place during the old regime outlined primarily in R. v. Morin . Transitional exceptional circumstances apply if the Crown can satisfy the court that it reasonably relied on the law as it existed prior to Jordan in incurring delay; in this case, during the four months and ten-day period. [ 58 ] During this period, a Summons was issued compelling Mr. Sepka to attend court on May 11th, 2016, for his first appearance. Disclosure was made from the Crown to defence counsel at the next appearance on May 24th, 2016.

The case was ultimately adjourned until July 19th, 2016, to fix a date for trial. During that approximate two-month period, defence counsel reviewed the disclosure, requested further disclosure, and took instructions from Mr. Sepka. I do not find this to be an inordinate amount of time to complete those tasks such as to raise delay concerns by the Crown. Indeed, these are actions that were legitimately taken by the defence to procedurally usher the case through the justice system in an informed, and therefore efficient, manner. [ 59 ] Why a summons was issued to compel Mr.

Sepka's appearance in court, returnable a little over two months after the charge was laid, is not clear. [ 60 ] There is no indication that Crown counsel reasonably relied on the law as it existed prior to Jordan to its detriment during this period of time. In any event, there was certainly time following the release of Jordan to correct any delay concerns that may have arisen during this pre- Jordan time period. [ 61 ] Consequently, I do not find that the transitional exceptional circumstance applies to the present case. CONCLUSION [ 62 ] The total delay in Mr. Sepka's case exceeds the 18-month guideline.

As stated in Jordan , there is a "strong presumption in favour of a stay once the ceiling is exceeded." (para. 85). That presumption has not been displaced. Consequently, Mr. Sepka's right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter has been infringed and a stay of proceedings is directed. (REASONS FOR JUDGMENT CONCLUDED)