R. v. Gagnon, 2018 BCPC 327

Citation: R. v. Gagnon 2018 BCPC 327 Date: 20180904 File No: 221099-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. BRIAN PAUL GAGNON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR BAN ON PUBLICATION PURSUANT TO S. 486.4(2) OF THE CRIMINAL CODE Counsel for the Crown: C. Baerg Counsel for the Defendant: M. Shamess Place of Hearing: Surrey , B.C. Date of Hearing: September 4, 2018 Date of Judgment: September 4, 2018

INTRODUCTION [ 1 ] Brian Paul Gagnon is charged with one count of sexual assault that allegedly occurred on the 18 th of October 2016. Mr. Gagnon applies for a finding that his constitutional right for a trial within a reasonable time has been violated. As a remedy pursuant to s. 24(1) of the Charter, he seeks a judicial stay of proceedings to immediately end this prosecution and his case. [ 2 ] The original Information charging Mr. Gagnon was sworn on the 1 st of February 2017. The current trial is scheduled to end on the 7 th of September 2018.

Therefore, the parties anticipate that the trial will conclude 19 months and seven days after the charge was sworn. In making my decision, I must apply the relatively new, but very specific framework created by the Supreme Court of Canada decision in R. v. Jordan , 2016 SCC 27 , pronounced on the 8 th of July 2016.

The Jordan framework stipulates that a Provincial Court trial should complete within 18 months, starting from the time the Information was sworn until the actual or anticipated completion date: Jordan , paras. 49 and 105 . [ 3 ] Once the trial time exceeds 18 months, I must subtract any time period in which the defence waived or caused the delay from the overall time period.

If the overall time still exceeds 18 months, I must presume that the anticipated time until trial completion is unreasonable: Jordan , para. 105 . [ 4 ] The Crown may rebut this presumption of unreasonable delay if it can demonstrate that exceptional circumstances apply to this case: Jordan , paras. 69 and 105 . The Crown in this case does not intend to advance such submissions. [ 5 ] I turn now to the position of the parties. Both parties agree that the overall delay is over the 18-month ceiling established by the Supreme Court of Canada.

They also agree that the first trial date was adjourned due to lack of available court time for that trial. However, they disagree about whether the defence waived or caused any delay, after the first trial date was adjourned, that might reduce the time period below the 18-month ceiling. [ 6 ] The central issues on this application are not complex, as follows:

a) On all the circumstances, I must determine whether the defence waived or caused any delay when rescheduling the second trial date, such that the overall delay should be reduced under the 18-month ceiling. If I make that finding, the defence does not intend to argue that the remaining delay is still unreasonable.

b) More specifically, I must determine whether, in all the circumstances, the unavailability of defence counsel on the earliest available court dates offered by the courts, which were two days in July 2018 and two days in August 2018, is defence waiver or defence-caused delay as those notions are legally defined.

c) The real question here is: to what extent, if any, defence counsel's

schedule should be considered when determining whether the defence waived or caused any delay? OVERVIEW [ 7 ] I turn now to my factual findings. I make the following findings of fact that seem to be relatively uncontroversial:

a) After the Information was sworn on the 1 st of February 2017, the intake period for counsel to get organized and review disclosure took less than three months. Both counsel agree that this was a relatively straightforward case requiring only modest court time for trial.

b) On the 27 th of April 2017, the parties arraigned the matter and scheduled the trial for the 9 th and 10 th of January 2018. I accept that these were the first available court dates offered by the court for the two-day trial. I also accept that the defence offered several earlier dates in November and December 2017 (15 available dates).

c) On the 9 th of January 2018, the first day of trial, the parties attended court and were informed that there was no court time available for Mr. Gagnon's trial to proceed. They immediately scheduled new trial dates. The new trial dates were scheduled for the 6 th and 7 th of September 2018.

d) On the 9 th of January 2018, defence counsel was available on the following dates between January 2018 and September 2018: in January - 10 clear days; in February - nine clear days; in March - eight clear days; in April 15 - clear days; in May 14 - clear days; in June - seven clear days; in July one - clear day; in August - seven clear days. On the 9 th of January 2018, the first dates offered by the court were the 12 th and 13 th July 2018.

e) Defence counsel Mr. Shapray was unavailable on the 12 th or 13 th of July 2018 because he was on vacation. The Crown was available on those dates.

f) Both the court and Mr. Shapray were not available from the 14 th of July through the 31 st of July 2018.

g) The 18-month ceiling was triggered on the 1 st of August 2018.

h) On the 9 th of January 2018, the court was not available from the 1 st of August until the 13 th of August 2018. The next available dates offered by the court were the 13 th and 14 th of August 2018.

i) Mr. Shapray was available on August 1st, 2nd, 3rd, 7, 8, 9 and 10, 2018. He was unavailable on August 13 or 14, 2018 because he was on vacation. The Crown was available on those dates.

ANALYSIS [ 8 ] I turn now to my analysis. I must first apply the law to the facts in this case. In making my decision, I have considered all of the affidavits, case decisions and submissions provided by counsel, as well as the materials filed on this application. The defence relied upon the following cases: R. v. Jordan (previously cited); R. v. Williamson , 2016 SCC 28 ; R. v. Cody , 2017 SCC 31 ; R. v. Lai , 2018 BCSC 867 ; R. v. Eremenko , 2018 BCSC 1138 ; R. v. Ali-Kashani et al , 2017 BCPC 258 . [ 9 ] Ms. Baerg for the Crown has asked me to consider the following cases: R. v. Matheson , 2017 BCSC 166 ; R. v.

Wu , 2017 BCSC 2373 ; and R. v. Mouchayleh , 2017 NSCA 51 . [ 10 ] I have also considered the following case: R. v. Godin , 2009 SCC 26 .

SECTION 11(b) - RIGHT TO TRIAL WITHIN A REASONABLE TIME [ 11 ] I turn now to the general principles regarding s. 11(

b) and the right to trial within a reasonable time. At the heart of my analysis is Mr. Gagnon's constitutional right to a trial within a reasonable time pursuant to s. 11(

b) of the Charter . This Charter right strives to protect all accused but also serves the public interest. For Mr. Gagnon, a timely trial respects his right to be presumed innocent, receive a fair trial, limit pre-trial constraints on his liberty and reduce the negative impact on his personal wellbeing: Jordan para. 20 . For the public, a trial that enables serious charges to be tried on their merits in a timely fashion best serves the public interest and victims of crimes: Williamson para. 36 . [ 12 ] I must assess this case in two steps.

First, I must calculate the overall delay from the charge until the anticipated end of the trial. Second, I must determine if any time periods should be deducted from the overall delay due to defence waiver or defence conduct. Neither party seeks to advance any arguments beyond the second step. [ 13 ] The 18-month ceiling includes disclosure review, trial preparation and trial procedural requirements. As mentioned earlier, it is clear that the overall delay in this case is 19 months, seven days. Many people may consider a one-month, seven day overage to lack significance or to not be unreasonable.

However, I was reminded by counsel that the Supreme Court of Canada in Jordan , at paragraphs 56 to 57 , described the 18-month ceiling thus: We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. . . . There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court . . . This is a long time to wait for justice.

But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future. LEGAL FRAMEWORK OF DEFENCE WAIVER OR DEFENCE - CAUSED DELAY [ 14 ] I turn now to the legal framework of defence waiver or defence-caused delay. This is the second step, in which I must examine these issues. A defence waiver of delay can be explicit or implicit. Regardless, the waiver by defence counsel of specific time periods must be clear and unequivocal.

In addition, "The accused must have full knowledge of his or her rights as well as the effect waiver will have on those rights": Jordan para. 61 . [ 15 ] Defence-caused delay has been defined by the Supreme Court of Canada. I will have to examine whether the defence acted in a deliberate and calculated manner to delay the trial. I must consider whether the defence was not ready to proceed when the Crown and the court were ready. I am required to assess whether the defence conduct amounted to inaction, omissions or indifference designed to cause trial delay: Jordan paras. 63-64 , citing R. v.

Askov , [1992] S.C.R. 1199, pp. 1220-21 and Cody , paras. 30, 32 and 33 . [ 16 ] I am not permitted to second-guess steps taken by the defence in responding to the charges.

However, I must still assess whether any defence delay was caused by legitimate procedural requirements or, on the other hand, by marked defence inefficiency, complacency or indifference towards any growing delay: Cody paras. 32 and 32 . [ 17 ] I must differentiate between an accused who "simply did not cause any delay" and one who took proactive steps throughout the entire process to have his or her case tried as soon as possible: Vassell , para. 6. I note that the Supreme Court of Canada released the Vassell decision approximately one week before the Jordan and Williamson decisions.

The overall standard for defence conduct is now described as "reasonably proactive in attempting to move the matter along": Williamson , para. 30 . As the trial judge, I am considered to be "uniquely positioned to gauge the legitimacy of the defence actions": Jordan , para. 65 . DEFENCE POSITION [ 18 ] I move how to the defence perspective. The defence argues that Mr. Shapray's unavailability on the offered two days in July and two days in August should not be considered defence waiver or defence-caused delay, for the following reasons:

a) In April 2017, Mr. Shapray offered earlier dates than the January 2018 dates offered by the court. By offering earlier dates, Mr. Shapray explicitly did not waive delay.

b) The triggering event was the court's lack of available court time the 9 th of January 2018. The defence was present and ready to go to trial.

c) Mr. Shapray was available on numerous other dates prior to July the 12, 2018, but the court was not. The defence argues that it should not be penalized if, at January 2018, it did not have dates available on the scant four days offered by the court between January 2018 and August 13, 2018.

d) Both Mr. Shapray and the court were unavailable from July 14 th until July 31, 2018. The court remained unavailable until the 13 th of August 2018.

e) Mr. Shapray had several dates in August prior to the first date offered by the court for the 13 th of August 2018.

f) Again, Mr. Shapray did not explicitly or implicitly waive any delay periods, including those time periods when he was not available due to his vacation. [ 19 ] The primary defence position is that no defence delay should be deducted from the overall delay. Ms. Shamus, in maintaining her first position, argues that I should not apply the term "not ready to proceed" from para. 64 in Jordan to Mr. Shapray. She submits that he simply did not happen to have the four dates offered by the court in a sea of available dates offered by Mr.

Shapray. [ 20 ] In the alternative, if the court finds that some delay should be deducted, Ms. Shamus argues that (at most) only a small portion of days when Mr. Shapray was unavailable in July can be deducted. Mr. Shapray only offered one available date in July. Therefore, the defence argues that only the dates of July 12 to July 31, 2018 which equal 19 days, can be deducted. When the overall delay is recalculated, the delay is still 18 months, nine days. [ 21 ] However, I also note that the court was also not available between July 13 and August 13, 2018.

Accordingly, I am uncertain how I could deduct the period between July 13 th and July 31 st in a principled fashion, given the requirement that defence delay is deducted if the court and the Crown are ready to proceed but the defence is not: Jordan , para. 64 . Here, the court and defence were both unavailable. [ 22 ] Ms. Shamus points out that, at all times, Mr. Shapray was reasonably proactive in moving this matter along. He arraigned the matter within an early and reasonable period of time.

He offered several earlier court dates when scheduling the first and second trial dates, which is supported by the affidavits of Mr. Broad and Ms. Williamson, both filed on this application. He demonstrated no inaction, indifference or complacency in trial scheduling. He did not solely or deliberately cause any delay. [ 23 ] Ms. Shamus argues the decision in Godin applies directly to these facts. In Godin , the unavailability of defence counsel and defence conduct was squarely before the Supreme Court of Canada.

In that case, the defence was unavailable on the first date offered by the court for a preliminary inquiry. However, unlike Mr. Gagnon's case, the court record in Godin did not contain the earliest dates offered by the defence. The Supreme Court of Canada determined that the time period between the first offered date and the eventual date for the preliminary inquiry should not be treated as a defence waiver of delay in the circumstances of that case. The Supreme Court of Canada observed at paragraph 23 that: Scheduling requires reasonable availability and reasonable cooperation. It does not for s. 11(

b) purposes require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that he wished to proceed expeditiously. [ 24 ] This perspective was adopted after the decisions in Jordan and Cody in R. v. Vitalis , 2018 ONCJ 43 ; R. v. Albinowski , 2017 ONSC 2260 , as referred to by Schultes J. in Lai , and Eremenko at para. 71 . CROWN POSITION [ 25 ] I move on to the Crown perspective.

The Crown essentially points to defence counsel's unavailability in July and August 2018. Ms. Baerg for the Crown submits that the entire period from July 12 until July 7 (sic) 55 days, should be deducted from the overall delay of 19 months, seven days. The resulting delay would be 17 months, 12 days which is under the 18-month ceiling. [ 26 ] The crux of the Crown's argument is direct: Jordan at para. 64 states , ". . . the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not." Simply put, Ms.

Baerg points out that the Crown and the court were available on July 12 th to 13 th and August 13 th to 14 th , the defence was not. The trial could have occurred earlier and before the 18- month ceiling but for defence unavailability. I was referred to a similar situation in Matheson at para. 33 . [ 27 ] Ms. Baerg referred me to the Wu decision in which Watchuk J. considered the busy

schedule of defence counsel at paragraph 63: . . . a defence counsel’s full

schedule cannot act as a shield against deductions of delay in the Jordan analysis, particularly when the defence is also bringing an application for Charter relief on the basis of that very delay. This leads to the result where accused persons hiring exceptionally busy defence counsel are more likely to receive a Charter remedy than those who hire counsel available to bring a matter to trial at an earlier date. This cannot be the result envisioned in Jordan. [ 28 ] The Crown argued strenuously that Godin is unrealistic in the post- Jordan world.

The Nova Scotia Court of Appeal in Mouchayleh in paragraph 26 limited the applicability of Godin as follows: Certainly in a post-Jordan world, the priority of barristers should be to attend court promptly for those clients they have undertaken to represent. Defence counsel unavailability when Crown and Court are ready will be attributed to the defence (Jordan, ¶ 64 ). Non-trial obligations should be rescheduled. This may not be what the Supreme Court of Canada contemplated in R. v. Godin, 2009 SCC 26 (¶ 23 ).

But in a post-Jordan world, there is no assessment of the reasonableness of delay on Morin factors to contextualize the analysis of counsel’s availability as in Godin. “Reasonableness” is largely subsumed by the presumptions. Outside transitional cases, “exceptional circumstances” are the only excuse for Crown delay beyond the presumption (Jordan, ¶ 81 ). CONCLUSION

[ 29 ] I turn now to my decision. In essence, I have been given a choice by Crown between upholding the accused's right to a trial within a reasonable time or his right to counsel choice. The Crown argues that I must disregard earlier defence dates and the defence must hold their calendar open given the strictures of the Jordan decision.

The defence argues that it is unreasonable to require already proactive defence counsel to hold court dates open in perpetuity. [ 30 ] In trying to resolve this conflict, the natural recourse is to determine what is reasonable and appropriate in all of the circumstances before me. As with much constitutional jurisprudence, a balance must be struck in order to protect the rights of the accused, the public interest and the victims of crime.

Importantly, the Supreme Court of Canada in Godin considered that scheduling required reasonable availability and reasonable cooperation. [ 31 ] The burden for a trial within a reasonable time does not solely belong to the defence. The conduct of the defence cannot be assessed in isolation. The more recent jurisprudence shows that all parties have an obligation to respect the need to have a trial within a reasonable time. Every actor in the justice system must take a proactive approach to prevent unnecessary delay: Cody , paras. 1 and 36 , citing Jordan , para. 137 .

This responsibility falls on the shoulders of the court, Crown and the defence: Cody , paras. 1, 33, 35, 36 and 39 , also citing Jordan , para. 138 . [ 32 ] I am not persuaded that the Godin decision falls short of the reality in a "post- Jordan " world, as stated by the Nova Scotia Court of Appeal in Mouchayleh . The Nova Scotia Court of Appeal focused on paragraph 64 of Jordan , which is also paragraph 30 of Cody . The court in Mouchayleh decided the Jordan framework left no analytical room for considering the availability of defence counsel in the same manner as the Supreme Court of Canada in Godin .

I find that both Jordan and Cody modify and enlarge the responsibility of all parties in a manner not contemplated by the court in Mouchayleh . Jordan and Cody must be considered in their entirety. It is important not to become too focused on the phrases in Jordan at paragraph 64 or Cody at paragraph 30 , because Jordan at paragraphs 137 and 139 made it clear that: Real change will require the efforts and coordination of all participants in the criminal justice system . . . For the courts, this means implementing more efficient procedures, including scheduling practices.

Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. [ 33 ] This language echoes the Supreme Court of Canada in Godin , which spoke about reasonable availability and reasonable cooperation.

The system cannot expect instantly available court time the next week, but it also cannot expect defence counsel to be available further into the future than is reasonable in the circumstances. [ 34 ] Watchuk J. in Wu stated at paragraph 62 that: I agree with the defence that Godin was not explicitly overturned in Jordan, but we are now dealing with a new analytical framework that was not in place when Godin was decided.

Therefore, one must place weight on the entirety of the Jordan reasoning. . . . [ 35 ] At paragraph 63, the court in Wu agreed with the statement in the decision in Albinowski referenced above in the decision of Lai . However, I also note that Watchuk J. commented that: . . . a busy

schedule does not lessen the responsibility on defence counsel to be alive to their realistic capacity to take on a particular trial and complete it within a reasonable time. ( Wu , para. 65 ) [ 36 ] I adopt her statement that: It is understood and accepted that Mr. Wu can choose any counsel he wants to represent him at trial, even if that defence counsel is in high demand and has a busy schedule. However, an accused person cannot use counsel’s unavailability for trial as both a sword for bringing a delay application, and a shield against deductions of defence delay . . .

And this is the portion that I emphasize: There must be a balance between not expecting counsel to remain in a state of perpetual availability, and allowing that unavailability to count towards unreasonable delay. ( Wu paras. 64-65 ) [ 37 ] In Ali-Kashani et al , St. Pierre J. stated at paragraphs 66 and 68: It is clear that the Supreme Court in Jordan and Cody sought to prevent the defence from benefitting from conduct designed to cause delays. Can it be said in this case that the defence conduct was solely or directly the cause of the significant delay here.

I do not think so. . . . one thing that is clear is that counsel often had earlier dates to offer the court and it was the court that could not accommodate those earlier dates. [ 38 ] I note that the Supreme Court in Cody also considered a period of time when the defence and Crown were available earlier but the court was unable to accommodate the parties until much later: Cody , para. 55 . [ 39 ] In keeping with its statements that all parties have a responsibility to ensure that matters proceed in a timely fashion, the Supreme Court of Canada stated that this delay period was therefore a product of systemic limitations in the court system and should not be deducted: Cody , para. 55 . [ 40 ] Although the statement was made in the context of whether there were exceptional circumstances, it is clear that the Supreme Court of Canada in Cody refused to deduct delay when the court was not available but the defence and Crown were available.

The calendar of defence counsel was considered, not ignored, for the purposes of determining whether deductions could be made to the overall delay.

[ 41 ] The need for earlier trial dates does not overrule the balance necessary when acknowledging the reality of defence counsel's availability. I cannot ignore that the second trial date here was required due to lack of court time and that earlier dates were not available for the second trial date, yet at the same time fail to recognize that defence counsel was ready and available much earlier.

A similar sentiment was echoed earlier by Cromwell J. in Godin at paragraph 23 as follows: I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [ 42 ] In January 2018, it was not unreasonable for Mr. Shapray to be unavailable for two dates in July and two dates in August due to a scheduled vacation.

Given his proactive approach to the trial, I find that he did not explicitly or unequivocally waive any delay. He was not indifferent or complacent to the delay. Mr. Shapray was not hiding behind a busy

schedule to deliberately cause any delay. [ 43 ] It truly was a situation of only two days being available and therefore offered between January 2018 and August 2018 when the 18-month ceiling was triggered. After that, it was incumbent on the court to prioritize this case. However, only two dates were available and therefore offered by the court in August of 2018. [ 44 ] A somewhat similar situation arose in Godin when the s. 11(

b) application had to be adjourned due to a scheduling conflict in defence counsel's calendar. The Ontario Court of Appeal in Godin found this adjournment to be troubling. The Supreme Court of Canada found it to be ironic but irrelevant: By the time that scheduling conflict arose, the case had already, as the trial judge found, been unreasonably delayed. (para 26) [ 45 ] After careful consideration, I conclude that Mr. Gagnon's defence took reasonable proactive steps to try and move the case along in the full context of this case. I decline to subtract any time periods from the overall delay on the basis of defence waiver or defence caused delay.

SUMMARY OF CONCLUSIONS [ 46 ] I turn now to my conclusions. 1. Did the defence waive or cause any delay? The answer is no. 2. Has Mr. Gagnon's constitutional right to trial within a reasonable time been breached? The answer is yes. I find that the s. 11(

b) rights of the accused were not respected. The delay occurred because of systemic limitations of the court and is therefore unreasonable. [ 47 ] This conclusion will not be palatable for many in our community. I do not make this decision lightly or happily. However, as noted by the Supreme Court of Canada in Williamson at paragraph 38 , " . . . timely justice is one of the hallmarks of a free and democratic society." Accordingly, I enter a judicial stay of proceedings against Mr. Gagnon on this matter. (REASONS FOR JUDGMENT CONCLUDED)