R. v. Cooper Date:, 2017 BCPC 11

Citation: R. v. Cooper Date: 20170124 2017 BCPC 11 File No: 231733-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDON AKIL COOPER REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: J.H. Cryder Counsel for the Defendant: D.A. Kontou Place of Hearing: Vancouver , B.C. Dates of Hearing: March 7-9, 15, 18, 31, Sept. 22, Oct. 19, 25, Dec. 5, 2016 Date of Judgment: January 24, 2017

INTRODUCTION [ 1 ] On October 25, 2013, at Vancouver, British Columbia, Shawn Brown was shot during the course of what the Vancouver Police Department (the “VPD”) believed to be an illicit marijuana transaction. [ 2 ] The VPD commenced an investigation.

There were four persons of interest to the VPD with respect to the shooting, including Brandon Akil Cooper (the “applicant”). [ 3 ] Through the use of surveillance, witness information, forensic evidence and source information obtained as a result of warrants, the persons of interest, including the applicant, became suspects in the shooting. [ 4 ] On November 28, 2013, the VPD executed search warrants at a residence at 33-8591 Blundell Road, Richmond, British Columbia, and locker 2100 located at Maple Leaf Self Storage at 7705 Griffiths Dr., Burnaby, British Columbia. [ 5 ] The applicant and the three other suspects were all arrested.

The applicant was arrested at the Blundell Road property. During the course of his arrest, the applicant was observed dropping a pistol that was later seized. It was determined that this pistol was likely the pistol used to shoot Shawn Brown. [ 6 ] The VPD recovered a number of pistols, live rounds of ammunition, 11 cellular phones and three SIM cards during the search of the Blundell Road property. [ 7 ] The VPD recovered 24 containers of marijuana, live rounds of ammunition and the applicant’s identification at the Maple Leaf Self Storage locker.

The applicant’s fingerprints were found on one of the containers of marijuana. [ 8 ] On November 29, 2013, the applicant was charged in an Information with seven counts relating to the possession of prohibited or restricted weapons and with possession of a controlled substance for the purpose of trafficking: [Information 231733-1]. [ 9 ] On January 9, 2015, the Crown filed a subsequent Information, adding a further count alleging that the applicant trafficked in a controlled substance on October 25, 2013: [Information 231733-2-C].

TRIAL TIMELINE [ 10 ] The period of time between November 29, 2013, and the anticipated end of the trial on March 17, 2017, is 39 months and 18 days. ISSUES PURSUANT TO THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS (THE “ CHARTER ”) (

i) Section 8 of the Charter [ 11 ] On April 17, 2015, the applicant filed Constitutional Notice, as amended on January 28, 2016, of his intention to seek an order that the warrant issued to authorize the search of the Maple Leaf Self Storage locker was facially and sub-facially invalid. In support of the application, the applicant sought an order of the Court to grant leave to cross examine the Affiant of the Information to Obtain (the “ITO #1”). (ii)

Section 11(

b) of the Charter [ 12 ] On October 19, 2016, the applicant filed Constitutional Notice of his intention to seek a remedy in the nature of a Stay of Proceedings (“SOP”) pursuant to s. 24(1) of the Charter on the basis that the delay from November 29, 2013 until the anticipated conclusion of the trial on March 17, 2017 exceeded the presumptive ceiling established by the Supreme Court of Canada (“SCC”) in R. v. Jordan , 2016 SCC 27 . (iii) Priorizing Charter Challenges [ 13 ] It was agreed by counsel for the applicant, the Crown and the Court that it was not practical to proceed with the s. 8 Charter issue[s] until the s. 11(

b) Charter issue was resolved. ISSUES [ 14 ] Under Jordan , is 39 months and 18 days delay presumptively unreasonable? [ 15 ] Is any of the delay the fault of “defence delay” as discussed in Jordan ? [ 16 ] If the delay is presumptively unreasonable, has the Crown established the existence of “exceptional circumstances” as required by Jordan ? [ 17 ] Has the Crown established that “transitional exceptional circumstances” exist as required by Jordan ? DISCUSSION (

a) Charter Framework [ 18 ]

Section 11(

b) of the Charter reads:

11. Any person charged with an offence has the right … (

b) to be tried within a reasonable time; [ 19 ] Section 24(1) of the Charter reads: 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (

b) Summary of the Jordan Framework [ 20 ] The new framework is summarized at paras. 46 to 48 in Jordan in the following language: [ 46 ] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable.

The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [ 47 ] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If it cannot, the delay is unreasonable and a stay will follow. [ 48 ] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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.

We expect stays beneath the ceiling to be rare, and limited to clear cases. [ 21 ] Jordan set a presumptive ceiling of 18 months for cases going to trial in Provincial Court.

Anything above the 18 months is a presumptively unreasonable delay. [ 22 ] In this case, the total delay from the date of the charge to the anticipated end of the trial is 39 months and 18 days, or 21 months and 18 days above the presumptive ceiling. [ 23 ] In the analysis of the delay, defence delay must be subtracted from the total delay before the delay is considered presumptively unreasonable. [ 24 ] Jordan identified that defence delay has two components: (1) periods of delay waived by the defence, either explicitly or implicitly, but which must be “clear and unequivocal”: [para. 61]; and, (2) “delay caused solely by the conduct of the defence”: [para. 63].

The latter includes “[d]eliberate and calculated defensive tactics aimed at causing delay” and instances when the Court and the Crown are ready to proceed, but the defence is not: [paras. 63 and 64]. It remains open to trial judges to find that other defence actions or conduct have caused delay: [para. 64]. [ 25 ] In Jordan , the Court noted that defence actions that are legitimately taken do not constitute defence delay: [ 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. CHRONOLOGY OF THE PROCEEDINGS (

i) December 2013 - December 2014 [ 26 ] The applicant appeared in custody in Court on December 5, 2013, and adjourned his case to December 17, 2013, to retain counsel and to make an application for bail. [ 27 ] On December 17 and 18, 2013, the applicant was granted bail. He was released upon his entering into his own recognizance in the amount of $10,000 with one or more sureties coupled with restrictive conditions of bail. The applicant was unable to perfect bail. [ 28 ] On January 21, 2014, the Crown consented to a bail review and a variation of the original bail.

The judge assigned to hear the application was not available until March 25, 2014. The applicant was adjourned to January 28, 2014, to fix a date for a pretrial conference. [ 29 ] On January 28, 2014, the applicant elected to be tried by a Court composed of a Provincial Court Judge. He was adjourned to February 3, 2014, for a pre-trial conference. [ 30 ] A pre-trial conference took place in Chambers on February 3, 2014. Counsel for the applicant agreed to fix dates for the purpose of a voir dire regarding the execution of the two warrants at the Blundell Road property and Maple Leaf Self Storage locker 2100.

Counsel for the applicant was waiting for further disclosure, including ITO #1 in support of the search warrants. The Crown advised at the pre-trial conference that ITO #1 was subject to a sealing order.

[ 31 ] On February 17, 2014, counsel for the applicant made a court appearance for the purpose of fixing trial dates. At this time, the applicant had not perfected bail. His custodial status would have an impact on available trial dates so the matter was adjourned to March 12, 2014. [ 32 ] On March 12, 2014, counsel for the applicant appeared in Court to fix dates for trial. The Crown was not in a position to fix trial dates on that date as they required time to vet materials yet to be disclosed by the VPD.

The case was adjourned over to March 25, 2014 for a bail review. [ 33 ] On March 25, 2014, and with consent of the Crown, the applicant’s original bail was canceled and was replaced by a new recognizance with a deposit of $5,000 with one surety. There were 15 conditions of bail imposed in relation to the recognizance, including a curfew. [ 34 ] On March 26, 2014, trial dates were reserved on an out of custody basis and in accordance with the scheduling direction of the Regional Administrative Judge (the “RAJ”).

The s. 8 Charter challenge was to proceed by way of a voir dire commencing on March 10, 2015, and concluding on March 20, 2015. [ 35 ] The trial was to commence on April 22, 2015, and conclude on May 11, 2015. [ 36 ] On April 11, 2014, the Judicial Case Manager (the “JCM”) advised that the dates of May 8 and 11, 2015, were no longer available.

Those dates were replaced with the dates of May 12 and 13, 2015. [ 37 ] On April 14, 2014, counsel for the applicant was advised that there would be a change in Crown who would have conduct of the prosecution. [ 38 ] Thereafter, there were various VPD ongoing investigations, including the granting of a judicial authorization for taking a DNA sample from the applicant.

A swab sample was taken from the applicant, however, the applicant’s DNA did not match DNA profiles recovered from exhibits found at the scene of the shooting. [ 39 ] On November 28, 2014, counsel for the applicant and the Crown agreed to adjourn the pre-trial conference scheduled for December 3, 2014 to December 10, 2014. [ 40 ] On December 10, 2014, a third pre-trial conference was conducted in Chambers with counsel for the applicant, the Crown and the RAJ. At this pre-trial conference the Crown advised that ITO #1 had been unsealed. The applicant was provided with a disk containing ITO #1 disclosure.

Counsel for the applicant advised that he would file and serve Constitutional Notice and argument in relation to the s. 8 Charter challenge after he reviewed ITO #1 disclosure. (ii) January 2015 - April 2015 [ 41 ] On February 6, 2015, counsel for the applicant applied to adjourn the voir dire scheduled for March 10 - 20, 2015.

The stated reasons for the adjournment were threefold: (1) the late disclosure of the lengthy ITO #1; (2) service of the new Information filed January 9, 2015 [Information 231733-2-C]; and, (3) the counsel for the applicant was involved in a murder case that was scheduled until the end of February, 2015. [ 42 ] Counsel for the applicant and the Crown agreed to begin the voir dire on April 22, 2015, and continue with the scheduled trial dates. [ 43 ] On February 17, 2015, the fourth pre-trial conference took place in Chambers with this Court now scheduled as the assigned Court to hear the case.

Counsel for the applicant and the Crown agreed that the voir dire would commence on April 22, 2015.

Counsel for the applicant was to file Constitutional Notice and argument with respect to the applicant’s challenge of the search warrant relating to Maple Leaf Self Storage locker 2100. [ 44 ] On March 13, 2015, counsel for the applicant received further disclosure from the Crown, including a copy of the most recently filed Information and a disk with further disclosure. [ 45 ] On April 17, 2015, counsel for the applicant filed and served Constitutional Notice seeking exclusion of evidence obtained from Maple Leaf Self Storage locker 2100.

In part, counsel for the applicant relied on disclosure to date arguing that the search warrant was not supported by ITO #1. [ 46 ] On April 22, 2015, counsel for the applicant and the Crown appeared before the Court. The Crown requested a one-week adjournment to consider the impact of the Constitutional Notice. The case was adjourned to April 28, 2015 for the next appearance before the Court. [ 47 ] On April 28, 2015, counsel for the applicant and the Crown appeared in Court. At that time the Court was advised of the existence of a second ITO (“ITO #2”) that was subject to an existing sealing order.

The trial was adjourned. The Crown was to provide disclosure relating to ITO #2. The applicant’s bail conditions were varied removing the curfew condition. (iii) May 2015 - October 2015 [ 48 ] On May 1, 2015, counsel for the applicant attended at Court to fix new trial dates. The Crown failed to attend. [ 49 ] May 11, 2015, new trial dates were fixed by counsel for the applicant and the Crown. Dates for the s. 8 Charter voir dire were set for March 7, 2016 to March 18, 2016. The trial was set to commence on March 21, 2016, and conclude on April 1, 2016.

A fifth pre-trial conference was scheduled for October 15, 2015. [ 50 ] On October 15, 2015, the fifth pre-trial conference was conducted in Chambers. Counsel for the applicant and the Crown

confirmed the voir dire and trial dates. Counsel for the applicant and the Crown indicated their readiness to proceed on the scheduled dates. (iv) January 2016 - January 2017 [ 51 ] On January 28, 2016, a sixth pre-trial conference was conducted in Chambers. At that time counsel for the applicant filed and served amended Charter notices on the Crown. [ 52 ] The voir dire commenced on March 7, 2016, and concluded on March 18, 2016.

Trial dates that were to follow the voir dire were vacated to allow time for the preparation of written argument and submissions on the voir dire . [ 53 ] On March 31, 2016, counsel for the applicant and the Crown appeared in court and the date for written argument and submissions on the voir dire was fixed for September 26, 2016.

New trial dates were fixed commencing January 9, 2017, and concluding on January 27, 2017. [ 54 ] At various times from April through to July 2016, the Crown made requests that counsel for the applicant provide their written submissions in relation to the voir dire . [ 55 ] On July 8, 2016, the SCC released their decision in Jordan . [ 56 ] On August 3, 2016, the Crown received written argument from counsel for the applicant.

Due to scheduling commitments the Crown was unable to respond to the argument through that week. [ 57 ] From August 8 to September 5, 2016, the Crown was on annual leave. [ 58 ] From September 6 to September 23, 2016, the Crown was engaged in other files and was not be able or available to respond by way of written argument or oral submissions by the scheduled date of September 26, 2016. [ 59 ] On September 22, 2016, there was a court application before another Judge of the Provincial Court in which the Crown was granted an adjournment of the voir dire so they could prepare their argument.

A continuation date was set for December 5, 2016. The trial dates set for January 2017 remained unchanged. [ 60 ] At my request, I directed that the JCM’s arrange a further pre-trial conference as I wished to be updated about the status of the case. On October 19, 2016, a seventh pre-trial conference took place in court. Counsel for the applicant filed and served the Crown with Constitutional Notice that the applicant’s s. 11(

b) Charter right had been violated. [ 61 ] On October 25, 2016, an eighth pre-trial conference took place in court. It was agreed that the delay argument would proceed on December 5, 2016. [ 62 ] On December 5, 2016, the delay argument was heard. Counsel for the applicant and the Crown relied upon written argument and oral submissions. Following submissions, it was agreed that in the event the Court found there was not unreasonable delay, the s. 8 Charter argument would then proceed. It was also agreed that January 24, 2017, should be reserved for decision in relation to the s. 11(

b) Charter argument. The balance of the trial dates in January of 2017 were vacated. [ 63 ] On December 7, 2016, counsel for the applicant and the Crown appeared in court to fix the March 2017 trial continuation dates. ANALYSIS (

a) Presumption of Unreasonable Delay under Jordan [ 64 ] Jordan sets a presumptive ceiling of 18 months for cases going to trial in provincial court. Anything above 18 months is presumptively an unreasonable delay. [ 65 ] In the present case, the total delay from the date the first information was sworn until the end of the trial is 39 months and 18 days, or 21 months and 18 days above the presumptive ceiling. [ 66 ] As discussed in Jordan , defence delay must be subtracted from the total delay before the delay is considered presumptively unreasonable. (

b) Defence Delay (

i) December 2013 - December 2014 [ 67 ] The time period from December 2013 - December 2014 was not given substantial weight in either party’s oral or written submissions.

The Crown did not characterize any of this as defence delay. [ 68 ] As stated in part by the SCC in Jordan , at para. 65 , “… defence applications and requests that are not frivolous will also generally not count against the defence.” The pre-trial applications and court appearances set out in the chronology would not be characterized as “frivolous”, and therefore do not constitute defence delay. (ii) January 2015 - April 2015 [ 69 ] In response to the February 6, 2015 adjournment application brought by counsel for the applicant [para. 42 of the chronology], the Crown submitted that counsel for the applicant had sufficient time to prepare once ITO #1 was disclosed three months prior to the scheduled voir dire in March 2015.

The Crown argued that “any resulting delay on this issue is solely due to the conduct of the

defence”: Crown Submissions, para.74. [ 70 ] The delay amounts to 1½ months. [ 71 ] However, as stated in part at para. 65 of Jordan, the SCC makes it clear that: … 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. … [ 72 ] The availability of counsel in the time required to prepare for trial should not be considered in isolation from the realities of defence counsel’s practice; however, nor should a court be too forgiving of delays caused by conflicts in defence counsel’s schedule. [ 73 ] Counsel for the applicant is a senior lawyer with a significant legal practice. By the very nature of his practice, he would have competing responsibilities in maintaining his practice.

He has explained the reasons for the adjournment application which include the late disclosure of ITO #1. [ 74 ] I find that this delay was not caused by the conduct of counsel for the applicant and, therefore, is not attributed as defence delay. [ 75 ] The Crown submitted the Constitutional Notice (as amended) filed by counsel for the applicant in April 2015 [Chronology para. 46] constituted a “frivolous application.” The Crown relied almost entirely on the timing of the Notices as amended.

The Crown did not point to any other “frivolous” aspects of the applications, but rather to the addition of legal arguments and the re-ordering of submissions in the amended notice, which required more time to properly respond to. [ 76 ] Here, Holmes J.’s remarks in R. v. Curry , 2016 BCSC 1435 at para. 129 , are apposite. In Curry , counsel for the defendant required an adjournment after using scheduled time for an unscheduled application for materials relating to source materials. Holmes J. stated: 129 Mr. Curry's application, though not successful, was not frivolous.

It was not the nature of the application, but rather its timing, that the Crown submits resulted in delay attributable solely to the defence. [ 77 ] The timing of defence conduct does fall squarely under the Jordan analysis. In Rice v. R , 2016 QCCS 4659 , 2016 CarswellQue 9067 at para.42, Brunton J.C.S. stated: 42 In Jordan , the Supreme Court clearly states that defence actions legitimately taken to respond to the charges do not constitute defence delay. This Court holds that the concept of "legitimately", in this context, includes a finding that the defence acted in a timely fashion.

In other words, for a Jordan analysis, a non-frivolous, serious motion is not a "legitimate" defence action if it is not presented in a timely fashion.

"The defence should not be allowed to benefit from its own delay-causing conduct." [emphasis added]. [ 78 ] Even if the timing of the notices may be characterized as “defence delay”, the Crown required only one week, from, April 22, 2015, until April 28, 2015, to consider the amended notice. [ 79 ] I do not agree with the further submissions of the Crown that the adjournment applications by counsel for the applicant in April 2015 were caused solely by defence actions and had a “domino effect” that led to the eventual loss of the trial dates in April 2015. [ 80 ] The tipping point for the resulting delay was the late disclosure of the existence of ITO #2 which resulted in the adjournment of the trial granted by this Court on April 28, 2015. [ 81 ] Accordingly I attribute one week to defence delay. (iii) May 2015 - March 2016 [ 82 ] The Crown submitted the applicant should be responsible for the delay from their adjournment application on February 6, 2015 due to the unavailability of one of two lawyers for the applicant to complete the voir dire in May of 2015: Crown Submissions, para. 80. [ 83 ] I find that the delay was necessitated in part by the late disclosure by the Crown of ITO #2.

I do not accept the submission of the Crown that counsel for the applicant failed to exercise due diligence to request specific disclosure. [ 84 ] The duty to disclose the fruits of the investigation into the alleged criminal conduct of the applicant rests with the Crown and the police. Counsel for the applicant could not have requested that which he did not know previously existed and yet ought to have been disclosed as part of the disclosure package. [ 85 ] The Crown and the police have a duty to disclose.

These obligations, including defence counsel’s corresponding responsibility to request disclosure, were thoroughly canvassed by Arnold J. in R. v. Apostol , 2016 NSSC 241 . In

summary, those obligations include: • The duty of the Crown to disclose all information reasonably capable of affecting an accused’s ability to make full answer and defence at an early stage: para. 59; • These disclosure obligations extend to all material in the hands of the prosecuting entity. There is a corollary duty on police investigators to disclose to the Crown all relevant material in their possession: para. 60; • It is widely acknowledged that the Crown cannot explain the failure to disclose relevant materials on the basis that the investigating police force failed to disclose it to the Crown: Ibid;

• Recognizing the importance of an accused in seeking disclosure, an accused will often be justified in seeking an adjournment, or refusing to proceed to the next step in the proceeding, where outstanding disclosure consists of material that is relevant and significant to the Crown’s case: para. 64; • The Crown is not a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice.

As such, when the Crown is put on notice of the existence of relevant information they simply cannot disregard the matter: para. 65; • As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When defence counsel becomes aware of a failure to disclose, from other relevant material produced by the crown, then defence counsel must not remain passive in the face of that information. They must diligently pursue disclosure: para. 66. [ 86 ] There is no suggestion in this case that counsel for the applicant became aware from other disclosure material of the existence of ITO #2.

Rather, it was the Crown whom ought to have known of the existence of ITO #2 in their preparation for trial. [ 87 ] The Crown failed to make fulsome disclosure when there were repeated requests by counsel for the applicant for disclosure of all documents relating to the execution of the search warrants in this case. [ 88 ] As a result, I conclude that any delay resulting from the late disclosure of ITO #2 is not attributable as defence delay. (iv) April 2016 - March 2017 [ 89 ] When the existence of ITO #2 was brought to the attention of this Court on April 28, 2015, I expressed concerns over court scheduling times.

Defence counsel indicated his preference to stay with this Court though he was aware that it was likely that there would be another judge available that would save approximately one month in the total timeline. [ 90 ] The Crown submitted counsel for the applicant, by electing to stay with this Court, waived any delay that resulted from this Court’s busy schedule. [ 91 ] Consequently, it was the position of the Crown that the delay between April 2016 and February 2017, when the third trial was scheduled to finish (now March, 2017), should be attributed to defence delay. [ 92 ] The delay waived by the defence must be “clear and unequivocal”: Jordan at para. 61 .

I do not find that counsel for the applicant did, or even could, have waived all subsequent institutional delays caused by the scheduling of this Court. However, counsel for the applicant was willing to accept one month delay as defence delay that resulted from the applicant’s election to have the matter stay with this Court rather than assigned to the next available judge. [ 93 ] The voir dire relating to any breach of the applicant’s s. 8 Charter right concluded on March 18, 2016. Defence submissions in relation to s. 8 were received by the Crown on August 3, 2016.

Submissions on the voir dire were to proceed on December 5, 2016. However, counsel for the applicant filed Constitutional Notice on October 19, 2016 that he was alleging his client’s rights under s. 11(

b) of the Charter had been infringed. [ 94 ] It was agreed that the s. 11 Charter issue should be dealt with in advance of any ruling relating to the s. 8 Charter issue. This also resulted in the loss of the trial dates scheduled for January 2017 (now March of 2017). [ 95 ] Other than the one month conceded by counsel for the applicant as defence delay in this timeline, I do not find any of the other delays are attributable as defence delay. (

c) Conclusion (

v) Delay Attributable to the Defence [ 96 ] Based on the above analysis, the total defence delay at the minimum is 1¼ months and up to 2¾ months. In subtracting the likely defence delay from the total delay of 39 months and 18 days, the remaining delay is between 38¼ months and 36¾ months. HAS THE CROWN ESTABLISHED THE EXISTENCE OF “EXCEPTIONAL CIRCUMSTANCES ”? [ 97 ] Since the remaining delay is above the presumptive ceiling, it is presumptively unreasonable. To rebut this presumption, the Crown must establish that the delay is reasonable based on the presence of exceptional circumstances.

If it cannot, the delay is unreasonable and a stay of proceedings will follow: Jordan at para. 47 . [ 98 ] At paras. 69 and 70, Jordan sets out what constitutes an “exceptional circumstance”: 69 Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. 70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay. [ 99 ] While the list is not exhaustive, in general “exceptional” circumstances, fall under two categories, (1) discrete events and,

(2) particularly complex cases: Jordan at para. 71. [100] The Crown submitted that one of the discrete events in this case turns on this Court’s busy

schedule which resulted in a clearconcern of potential timing problems communicated to counsel for the applicant. Notwithstanding the concern, counsel for the applicantelected to continue with this Court for the upcoming trial dates: Crown Submissions at para. 88. [101] At para. 73 of Jordan, the Court sets out when a discrete event during live trials may rise to the level of “exceptionalcircumstances”: 73 Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines.

Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant mightunexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonablyexpected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay wasunavoidable and may therefore amount to an exceptional circumstance. [102] I would not describe this Court’s “busy schedule” as “unforeseeable”, however “unavoidable” it may be.

The fact that the nextavailable judge who would have been able to hear this matter was available one month earlier would indicate that the court scheduling atthe Main Street courthouse was far from unique; rather, it was to be expected. [103] Moreover, the Crown does not adequately address the effect of the late disclosure of ITO #2 when accounting for the asserted“domino effect” of delay resulting from what it characterizes as a discrete event. As discussed at para. 80 the tipping point was the latedisclosure of ITO #2.

The Crown could have reasonably remedied the delay by producing all relevant disclosure in a timely fashion. [104] Much of the evidence that would be adduced in this case arises from tips, police surveillance and subsequent searches of theapplicant’s residence in Richmond and of Maple Leaf Self Storage locker 2100. [105] There would appear to be some complexities involved in prosecuting this case, but those complexities do not elevate this case tothe level of being characterized as a “particularly complex case”. [106] I find that the Crown has not established the existence of “exceptional circumstances” to rebut the presumptive ceiling.

TRANSITIONAL EXCEPTIONAL CIRCUMSTANCES [107] For cases in the system prior to Jordan, the Crown may establish the existence of “transitional exceptional circumstances” tojustify the reasonableness of the delay. [108] At paras. 96 - 98 of Jordan, the Court explained the transitional framework. The assessment of the delay is contextual andsensitive to previous delay frameworks established by case law. Complexity of any given case, significant institutional delay problemsand the actions of counsel all play into the assessment.

Ultimately, Jordan requires that a trial judge exercise his or her “good sense” todetermine the reasonableness of the delay in the circumstances of each case. [109] The Crown submitted that a transitional exceptional circumstance has been established based on the moderate complexity of thecase. In advancing this argument, the Crown relied primarily on its original expectation for the case rather than its current reality:Crown Submissions at para. 87. [110] Originally the entire case could have required up to 100 witnesses.

That said, the attempted murder investigation remainsoutstanding and of the five original search warrants, only two relate to the applicant. I am unaware of any complex forensic sciencerequired to advance the case for the Crown. [111] As was noted by Howard P.C.J. in R. v. Srivastava, Unreported Decision, December 9, 2016, File 233282-1 (VancouverRegistry), the approach to the characterization of complexity can be “artificial”: [53] The Crown’s approach to the issue of delay has been to focus on the alleged complexity of the case as it was at the time the trialdates were set in September 2015.

In my view, this approach is somewhat artificial. It ignores critical events that occurred thereafter. [112] I conclude that this case is relatively straightforward from an evidentiary point of view. At its heart is the question of thevalidity of the execution of two search warrants at two locations. It would be difficult to imagine that calling surveillance evidence inthis case would be either difficult or amount to any particular complexity. [113] Additionally, the Crown has not established that there are significant institutional delay problems at the Main Street courthousethat could not accommodate this case.

This can be a busy courthouse but it is not a courthouse that is plagued by lengthy, persistent, andnotorious institutional delays. [114] In this case, I do not find that the Crown has established a transitional exceptional circumstance based on the complexity of thiscase. [115] The Crown has also submitted that the transitional framework required a two-part inquiry, first under Jordan, and then under theprevious framework in R. v. Morin, (SCC), [1992] 1 SCR 771.

This approach was based on comments in Jordan thatthe Crown may satisfy the Court that “the time the case has taken is justified based on the party’s reasonable reliance on the law as itpreviously existed”: Jordan at para. 96. [116] The Jordan transitional framework does not mean that, having completed the analysis of delay under Jordan, the Court mustthen analyze delay under the Morin framework. The rationale was explained by Johnston J. in R. v. Dass, 2016 BCSC 1701 at para. 80: 80 I do not understand Jordan and Williamson to say that it is enough to refer back to a Morin analysis to determine whether, if an

application for a stay based on delay had been brought before Jordan , it would not, or might not have succeeded. If that were all that was required, the Court would have said so, and a transitional exceptional circumstance would be unnecessary. It is important to remember that the Court in Jordan saw the need to establish a presumptive ceiling to post-charge delay in order to deal with what it called a "culture of complacency" that had diluted the effects of Askov and Morin (at paras. 40 and 41 ).

To repeat, the question to be decided under the transitional exceptional circumstance is whether the Crown has shown that the time taken is justified, based on the parties' reasonable reliance on the law as it developed between Morin and Jordan . [ 117 ] The question is not whether, applying Morin , the delay might be reasonable. It is whether reliance on the law at the time was reasonable.

Even under the pre- Jordan guidelines, the delay in this relatively straightforward case is not reasonable. [ 118 ] I find that the main causes of the delay in this case are the delay of the Crown in disclosing in a timely way the particulars of ITO #1, and of the significant and serious failure of the Crown to disclose in a timely way the particulars of ITO #2. [ 119 ] The failure to disclose the two ITOs in a timely manner was entirely in the hands of the Crown.

Therefore I conclude that the consequent delay in these proceedings do not stem from a reasonable reliance on the law at the time. [ 120 ] The Crown has failed to establish the existence of exceptional transitional circumstances to justify the reasonableness of the delay in this case. CONCLUSION [ 121 ] In this case, there are no exceptional circumstances, transitional or otherwise, that would justify the significant delay outside of the 18 month presumptive ceiling set out in Jordan . Accordingly, the applicant’s right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter has been infringed. A stay of proceedings is directed. The Honourable Judge G. Rideout Provincial Court of British Columbia