R. v. Ali-Kashani et al. Date:, 2017 BCPC 358

Citation: R. v. Ali-Kashani et al. Date: 20170725 2017 BCPC 358 File No: 233202 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. Soheil ALI-KASHANI and Farzad SADEGHI-AMINI RULING ON APPLICATION OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: Baljinder Girn and David Hartney Counsel for the Defendant: Matthew Nathanson for Ali-Kashani Counsel for the Defendant: Kristy Neurater for Sadeghi-Amini Place of Hearing: Vancouver , B.C. Dates of Hearing: June 27, 28 and 29, 2017

Date of Judgment: July 25, 2017 [1] The two accused in this matter, Mr. Ali-Kashani and Mr. Sadeghi-Amini, make an application for a judicial stay of proceedingspursuant to s. 11(

b) and s. 24(1) of the Charter of Rights. In essence, they assert that this trial has taken far too long and that their right tohave a trial within a reasonable time under s. 11(

b) of the Charter has been thereby breached. The remedy sought is a stay ofproceedings. Previous Framework [2]

Section 11(

b) of the Charter of Rights says: Any person charged with an offence has the right to be tried within a reasonable time. [3] What a “reasonable time” actually means in practice has been the subject of much litigation since the Charter became thesupreme law of the land in 1982. [4] For many years the Supreme Court has attempted to outline the parameters of this right and give some direction to trial courtsas to how the analysis should be conducted. [5] Some 27 years ago the Supreme Court of Canada in R. v. Askov (SCC), [1990] S.C.J.

No. 106 dealt with adelay of almost two years from committal at the preliminary hearing to the trial. The trial judge found that the delay was due to a“chronic shortage of institutional resources”. The Ontario Court of Appeal found that the accused had not objected sufficiently to thedelay and that the silence seemed to be a deliberate move in order to buttress a later application for a stay of proceedings. [6] The Court in Askov (above) reviewed the cases that they had already dealt with under this Charter right to that point.

It seemsclear from that review that the Court was struggling with how certain factors were to be weighed in the necessary balancing process andhow to deal with the issue of prejudice to the accused. [7] The Court in Askov also reviewed the purpose of s. 11(

b) and recognized that although the primary aim of s. 11(

b) was theprotection of an accused’s rights there also was a community or societal interest to be protected. The majority notes that “failure of thejustice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicialsystem and eventually to a feeling of contempt for court procedures”. A quarter century later those words still ring with an alarmingdegree of continuity. [8] It is noteworthy that the Supreme Court of Canada in Askov expressed the hope that “imaginative cooperation can surelyresolve these problems”.

That “imaginative cooperation” has lapsed, in my opinion, as jurisdictions became increasingly complacentabout delays in the system. This was, no doubt, largely a result of the decision in R. v. Morin (SCC), [1992] S.C.J. No.25 (SCC), and the cases that followed, treating prejudice as an issue of paramount importance and placing the onus back on the accusedto prove it. [9] In Askov (and earlier cases, i.e. Mills v.

The Queen, (SCC), [1986] 1 S.C.R. 863) Chief Justice Lamer, indissent, maintained that the absence or presence of prejudice should not, in any way, be relevant to the initial issue of determiningwhether there has been a Charter breach under s. 11(b). [10] When the Morin case was considered a few years later, Mr. Justice Sopinka noted at para. 31: …While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too longmay be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32. [11] Prior to this, in the case of R. v. Kalanj (SCC), [1989] S.C.J. No. 71, the Supreme Court of Canada found thatthe time to be calculated, for the purposes of an analysis under s. 11(

b) of the Charter commences at the point an individual is “charged”which they found as equating to when the Information is sworn. Pre-charge delay can be impugned, but it must be with the use of othersections of the Charter. Mr. Justice McIntyre writes at para. 21:

It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealtwith by reliance on the general rules of law and, where necessary, the other sections of the Charter. … [12] Such a stay of proceedings was recently imposed by Mr. Justice Del Frate in R. v. Campbell [2017] O.J. No. 3393 (Ont. SCJ).The court there notes at para. 32: The Supreme Court of Canada in R. v.

Hunt, 2017 SCC 25 recently confirmed the principle that a stay of proceedings for pre-chargedelay is permitted, when it adopted the reasons of the dissenting judge in the Court of Appeal decision reported at [2016] N.J. No.372, 2016 NLCA 61, 33 C.R. (7th) 321. However, such relief must be exercised in the clearest of cases. [13] Here, a full year had passed from the date of the search warrant executions and arrests of the accused to the date when theInformation was sworn. The Crown maintains that, because the defence is only alleging a breach of s. 11(b), this period of time cannotbe considered for any purpose.

I agree that, in the absence of any application by the accused under “other sections of the Charter”, therecan be no finding that the pre-charge delay here was somehow offensive to societal notions of fair play and thus an abuse of process.However, when the Crown chooses not to provide any context to that delay, it seems reasonable that the delay may, not must, beconsidered when it comes to assessing the reasonableness of the inherent intake time and the time it may take to organize disclosure. [14] Specifically, pre-charge delay may, in certain circumstances, have an influence on the overall determination as to whether post-charge delay is unreasonable, but of itself it is not counted in determining the length of delay in this factor (Morin at p.789). [15] An example of one of those “certain circumstances” was evident in the case of R. v.

Topol 2008 ONCA 113 , [2008]O.J. No. 535 (Ont C. A.), where the court was dealing with a Crown appeal of a judicial stay for a breach of s. 11(

b) of the Charter.Amongst other grounds, the Crown had argued that the trial judge had erred in understating the inherent time requirements of the case.The Court states at paras. 9 and 10: 9 The application judge recognized the size and complexity of the case but he also considered the long investigation in assessing itsinherent time requirements. He was clear that pre-charge delay could not be included in the consideration of whether the delay wasunreasonable.

However, he went on to reason: if the complexity of the case and the amount of disclosure required is asserted as a reason to increase the inherent time requirements ofthe case then, in making the determination of what is a reasonable period of time for those steps, some consideration must, in fairness, begiven to the amount of time that the police and the Crown had, or took, to address those issues before charges were laid. 10 The application judge found as a fact that the work done during the four-year investigation that preceded the laying of chargesmade it possible for the Crown to make disclosure in relatively short order.

He also found the record did not reveal why the several pre-trials were scheduled months apart. His careful reasons make clear he did not arbitrarily use the lengthy pre-charge investigation toreduce the assessment of the inherent time requirements of the case. New Paradigm [16] A majority of the Supreme Court of Canada in the case of R. v.

Jordan 2016 SCC 27 , [2016] SCJ No. 27 concludedthat a fundamental change of direction is now required when considering the rights of an accused person to have a trial within areasonable time. [17] After noting that timely justice is one of the hallmarks of a free and democratic society the majority finds at paras. 4 and 5: 4 Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative.

Notwithstanding adelay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of theview that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing thecurrent analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towardsdelay. 5 A change of direction is therefore required. Below, we set out a new framework for applying s. 11(b).

At the centre of this newframework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in theprovincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness,the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus thes. 11(

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achievingreasonably prompt justice, with a view to fulfilling s. 11(b)'s important objectives. [18] Jordan was a case from British Columbia. There was 45 months of delay that could not be attributed to the accused. The trialjudge, employing the guidelines set out in Morin (above) concluded that the prejudice suffered by Jordan was not substantial and thecharges were serious (drug trafficking) and, therefore, dismissed Mr. Jordan’s application for a stay of proceedings under s. 11(

b) of theCharter. The Court of Appeal dismissed the accused’s appeal finding, in part, that the trial judge did not err when he declined to inferprejudice based on the length of the delay alone. Treatment of Prejudice to the Accused [19] The majority of the Supreme Court of Canada in Morin (above) maintained that the onus will be on the accused to establishprejudice as part of the overall burden on them to establish a Charter breach.

However, the court also found that even though it may wellbe that an accused (even most accused) are not particularly interested in having an early trial that finding could not be assumed. Theyfound that an individual’s rights are not to be determined on the basis of the desires or practices of the majority. Justice Sopinka was

careful to note (in writing for the majority) at para. 61: … Accordingly, in an individual case, prejudice may be inferred by from the length of the delay.

The longer the delay the more likely that such an inference will be drawn. (Emphasis added). [ 20 ] For some reason, that has never been very clear to me, subsequent cases where the court would, in fact, infer prejudice from a long delay were few and far between. [ 21 ] The Jordan (above) court recognized that the treatment of prejudice in the jurisprudence had become very confusing and therefore problematic (Interestingly, this situation was forecast years earlier by a dissenting Mr. Justice Lamer in Morin ).

The majority in Jordan noted this at paras. 33 and 34 : 33 Second, as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the s. 11(

b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between "actual" and [page 653] "inferred" prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests.

Courts have also found that "it may not always be easy" to distinguish between prejudice stemming from the delay versus the charge itself ( R. v. Pidskalny , 2013 SKCA 74 , 299 C.C.C. (3d) 396 , at para. 43 ). And even if sufficient evidence is adduced, the

interpretation of that evidence is a highly subjective enterprise. 34 Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered "reasonable" if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused's and the public's interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured.

Delayed trials may also cause prejudice to the administration of justice. [ 22 ] The Jordan court also impugned the detailed parsing of every minute of delay (complicated micro-counting as they called it in paragraph 111) over vast periods of time. They said this at para. 37: 37 Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge's existence. Although Cromwell J. warned in R. v.

Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3 , that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial "guesstimations", and has been applied in a way that allows for tolerance of ever-increasing delay. [ 23 ] It is clear the court hoped that this kind of process (in cases beyond the ceiling) may only need to take place where the Crown seeks to rely on exceptional circumstances.

That is what the Crown seeks to do in this case at bar. New Framework [ 24 ] The new paradigm sets a ceiling beyond which delay is presumptively unreasonable. That ceiling is 18 months for cases dealt with in the provincial court (the case at bar) and 30 months for cases tried in the superior court. [ 25 ] Total delay is calculated from the date of charge to the actual or anticipated end of the trial (minus defence delay).

To rebut the presumption Crown would need to establish exceptional circumstances otherwise a stay of proceedings would follow. [ 26 ] As a first step, total delay is calculated and then defence delay is deducted. Defence delay is either delay waived by the defence or delay caused solely by their conduct. The conduct may be conduct aimed at causing delay (including frivolous applications and requests). [ 27 ] Then, if that total is still above the ceiling that is presumptively unreasonable the Crown may rebut that presumption by showing exceptional circumstances.

Para. 69 of Jordan says: 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. [ 28 ] Exceptional circumstances, in general, will fall under two categories: discrete exceptional events and particularly complex cases. The court spent some time delineating the scope of these categories.

In addition, while confirming that the court plays no supervisory role in questions involving prosecutorial discretion they did note that Crown must be cognizant that any delay resulting from the exercise of such discretion must conform to the accused’s right to have a trial within a reasonable time. Transition Cases [ 29 ] The Jordan court was mindful of undermining cases currently in the system when the parties may have been operating under the parameters of the law as it existed prior. They found that the framework should be applied contextually and flexibly for cases currently in the system.

The court found that the new framework, including the presumptive ceiling, applies to existing cases, subject to two qualifications. [ 30 ] First, the Crown could satisfy the court that the parties were reasonably relying on the previous state of the law and then a transitional exceptional circumstance may be found. [ 31 ] Secondly, if the total delay fell below the ceiling the application of the Morin guidelines may lead to a finding of

reasonableness. [32] In applying the transitional framework to the facts the court found at paras. 124-128: 124 In total then, four months of delay were waived by the defence and one and a half months of [page684] delay were caused solelyby the defence. This leaves a remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30 months in thesuperior court. The burden is therefore on the Crown to demonstrate that the delay is reasonable in light of exceptional circumstances. 125 There is nothing in the record to indicate that any discrete, exceptional circumstances arose.

And although particularly complexcases may present an exceptional circumstance, this is not one of those cases. In terms of the legal issues, while Mr. Jordan was initiallycharged along with nine other co-accused, this number quickly dropped as the case progressed. At the time of trial, only one co-accusedremained on the indictment with Mr. Jordan. Further, none of the alleged offences involved novel or complex points of law. Relativelyfew pre-trial applications were scheduled. In short, the legal issues in Mr.

Jordan's case were not particularly complex. 126 As for the evidence, it was substantial but it was relatively straightforward. It consisted of surveillance evidence by policeofficers, undercover buys by police officers, a small amount of expert evidence regarding how dial-a-dope operations are conducted, anda search warrant for Mr. Jordan's apartment. There was nothing particularly complex about this evidence. 127 In the end, while the case against Mr.

Jordan may have been moderately complex given the amount of evidence and the numberof co-accused, it was not so exceptionally complex that it would justify a delay of 44 months (excluding defence delay). 128 However, since Mr. Jordan's charges were brought prior to the release of this decision, we must also consider whether thetransitional exceptional circumstance justifies the delay. In our view, it does not. We recognize that the Crown was operating withoutnotice of this change in the law within [page685] a jurisdiction with some systemic delay issues.

But a total delay of 44 months(excluding defence delay), of which the vast majority was either Crown or institutional delay, in an ordinary dial-a-dope traffickingprosecution is simply unreasonable regardless of the framework under which the Crown was operating. Therefore, it cannot be said thatthe Crown's reliance on the previous state of the law was reasonable. [33] In R. v. Cody 2017 SCC 31 , [2017] S.C.J. No. 31 (SCC), the Supreme Court applied the transitional framework in acase where the total delay was some 60.5 months and the net delay (after making the appropriate deductions) was 36.5 months.

Thecourt described it as yet another example of why change is necessary. [34] The Newfoundland Court of Appeal overturned the trial judge’s ruling that had stayed the proceedings for unreasonable delay.The appellate court did have the benefit of the Jordan decision prior to issuing their ruling and yet still found that exceptionalcircumstances justified the five year delay. [35] That case involved some 20,000 pages of disclosure. The amount of material involved was not seen to be dispositive of thecomplexity analysis. It is a qualitative assessment.

It was alleged that Cody was involved in a drug trafficking operation. There wereweapons involved. It was a case where the trial judge (R. v. Cody [2014] N.J. No. 395), accepted the Crown's submission that whileCody was not a target in the larger operation being run, full disclosure was necessary in order to ground the reasonable and probablegrounds for his warrantless arrest.

Despite the considerable amount of information involved in that case the trial judge, after applyingthe Morin guidelines, entered a stay of proceedings. [36] The Supreme Court restored the trial Judge’s Stay of Proceedings finding that the Crown could not show that the 36.5 monthsof net delay in that case was justified based on its reliance on the previous state of the law. It is notable that Cody proceeded in SuperiorCourt and that, therefore, they were dealing with the 30 month ceiling.

This Case [37] The police commenced an investigation into drug trafficking on the Downtown Eastside (Project Thorn) on August 29, 2013.The two accused were part of that investigation. Over the course of the next few months there was surveillance conducted on them andothers. Eventually, four search warrants were obtained under the Controlled Drugs and Substances Act and executed on November 1,2013. The following day, a couple of more search warrants were executed (a storage locker and a safety deposit box).

Cocaine and otheritems were located in various locations with the bulk of the narcotics (some two kilograms of cocaine) being discovered in a storagelocker associated to Ms. Rimes’ residence. Ms. Rimes is no longer before the court on these charges. The Crown entered a Stay ofProceedings with respect to her on November 4, 2016. [38] The charges against the accused were not sworn until October 29, 2014. [39] On December 17, 2014, initial disclosure was forwarded to the defence. Over the next several months additional disclosure wasprovided to the defence.

The matter was arraigned in March of 2015 and dates were set for voir dires in December 2015 and trial datesset for June and July in 2016. There were three defence counsel at that time and it appeared that June and July 2016 were the earliestdates that accommodated all three counsel’s schedules. [40] In August of 2015, defence counsel requested disclosure of information related to the confidential informant handler pursuant toR. v. McKay, 2015 BCSC 1510. Sometime later, the Crown appealed (successfully) the decision in McKay.

However, the Crownconceded that this information was properly requested at the time and that they were bound by the decision in McKay. They indicatedthat they would ask the court to make the order and simply wished to preserve their right to appeal. However, it was not until November18, 2015, that the parties appeared in front of me for this purpose. [41] In December of 2015, the voir dire dates were cancelled as the “McKay disclosure” was still incomplete. The June and July2016 trial dates were reserved for the voir dires. A Vukelich hearing with respect to those voir dires consumed several days.

The McKaydisclosure was not provided until February 3, 2016.

[42] Attempts to

schedule more court time after the June and July 2016 dates were thwarted in large part to the unavailability ofcounsel for Ms. Rimes, Mr. McGowan. Mr. McGowan had a small window of time available in December of 2016 and if that did notwork then he was only available after June 12, 2017, (see Affidavit of Nancie Kite, Exhibit P). On that basis, December 5-8 and 13-16,2016, were set aside for the trial. They were to be held until March 14, 2016, to confirm otherwise they would be released. [43] On March 11, 2016, there was a Pre-Trial Conference.

Crown had advised in Chambers that she was unable to confirm thoseset-aside dates in December 2016, as both she and the witnesses had availability issues. Further dates were sought to be set. I was advisedthat “based on everybody’s scheduling as well as Your Honour’s schedule”, June 15, 2016, was the earliest date that a vetting applicationrelated to the “McKay” disclosure could be heard. Crown Counsel advised at that time that the earliest date that Mr. McGowan would beavailable for further trial dates was June 2017. Crown Counsel was rightly concerned about that and asked for another Pre-TrialConference as Mr.

McGowan had appeared by agent that day. I simply stated on the record that June 2017 “is too far away. Period.” [44] On May 30, 2016, some dates in June and July 2016 were confirmed for the voir dires. Sufficient time, however, had not beensecured so June 15, 2016, was set for all the parties to get together and discuss the scheduling difficulties. Counsel was to attend inperson (not by agent) so that the issues could be resolved. [45] On June 15, 2016, counsel appeared before the court. December 2016 was being contemplated for continuation dates.

The courtmade comments lamenting the fact that it could not, as the superior court judges seem to do on a regular basis, simply order the parties toappear on a certain date. Everyone was concerned with securing further dates for the matter. [46] At that time, the Crown indicated that they were available on earlier dates in the fall of 2016, starting in September. Counsel forMr. Ali-Kashani indicated that he had even earlier dates than September available.

The court noted that one of the goals of the relativelynew scheduling model was to ensure the judge would be made available for relatively early continuation dates as he/she would not beassigned trials (except longer trials like this one) until late in the process. [47] Mr. McGowan, counsel for Ms. Rimes, also indicated that he had earlier dates. The court asked the parties to secure furtherdates on that basis. [48] The Vukelich hearing was also discussed at this appearance. The Crown required several days of court time to respond to therequest by the defence for a voir dire on the search warrants.

The court opined that the voir dire might have been finished in the timethat it took for the Crown to resist the voir dire in a Vukelich hearing. [49] At the end of June 2016, a Vukelich Hearing was conducted. The court felt compelled to comment on the process at the time aruling was delivered on July 11, 2016. This hearing was conducted over the course of three days. Counsel made extensive submissionsand several thousand pages of material and authorities were placed before the court for the sole purpose of determining whether a voirdire would be held in this case.

In this hearing counsel spent many hours poring over disclosure and how it related to the 300 pageInformation to Obtain in this case. [50] In a ruling that now seems prescient in the way that it mirrors the many concerns over delays that were expressed by the Jordancourt, Chief Justice McEachern said this in R. v. Vukelich (BC CA), [1996] B.C.J. No. 1535 (BCCA): 17 Generally speaking, I believe that both the reason for having, or not having, a voir dire, and the conduct of such proceedings,should, if possible, be based and determined upon the statements of counsel.

This is the most expeditious way to resolve these problems:see R. v. Dietrich (1970), (ON CA), 1 C.C.C. (2d) 49 at 62 (Ont. H.C.); R. v. Hamill (1984), (BC CA),14 C.C.C. (3d) 338 (B.C.C.A.); and R. v. Kutynec (1991), (ON CA), 70 C.C.C. (3d) 289 at 301 (Ont. C.A.). I suggestthat judges must be more decisive in this connection than they have been in the past because far too much judicial time is consumed bythe conduct of these kinds of enquiries. [51] There have been hundreds of cases that have considered Vukelich since that time. The hearings have become longer and morecomplicated as time passes by.

If the Chief Justice were around today to see how his direction has been implemented he would be quitedisappointed I would imagine. [52] It is clear that most of these hearings should be able to be conducted with a simple and short written or oral argument by counselexplaining how the low threshold has been met or not. They should never, in my opinion, become so protracted as to clearly beconsuming, unnecessarily, the very scarce resources that the hearing itself was designed to avoid wasting. [53] On July 14, 2016, the first voir dire was completed and the matter adjourned to November for continuation.

The partiesappeared before the court on October 19, 2016, to advise the court about their efforts to secure further court time. At that time, theCrown once again expressed their concerns over the delay. Counsel for the defence pointed out that they had offered dates in October,November and December of 2016 for continuation but that the court could only accommodate time after April of 2017. [54] Ultimately, dates in June and July, 2017 were confirmed. [55] On November 4, 2016, the Crown entered a stay of proceedings against Ms. Rimes.

This was a few days prior to the court’sruling finding that the search warrant with respect to her alleged residence was invalid. [56] During submissions on this hearing Crown acknowledged that there really was no additional evidence or information that hadcome to light in relation to Ms. Rimes that was not available at the time of the original charge approval.

The decision to stay theproceedings against her was simply, I understand from submissions, a result of a re-assessment of the likelihood of conviction in relationto the allegations against her. [57] As noted above, the Jordan court confirmed that the court plays no supervisory role in questions involving prosecutorialdiscretion. However, there was some significant delay caused by the difficulty in co-ordinating multiple schedules, difficulty that mayhave been prevented had the decision in regards to Ms. Rimes been made much earlier. The Crown must be cognizant that any delay

resulting from the exercise of their acknowledged discretion must conform to the accused’s right to have a trial within a reasonable time. [ 58 ] I should note that it was Mr. McGowan’s (counsel for Ms. Rimes)

schedule that was the least flexible as compared to other counsel involved. [ 59 ] In November of 2016, a second voir dire commenced and occupied several days into December. Crown required time to respond to the application and February 10, 2017, was set. This second voir dire concluded on February 23, 2017. [ 60 ] Further dates were sought to be set on February 27, 2017. The court had time on March 20, 2017, and April 24-26, 2017. However, counsel for Mr.

Ali-Kashani was not available on those dates due to an in-custody murder trial he was involved in. [ 61 ] Eventually, May 8-12, 2017, was set for continuation of voir dire number three. That voir dire concluded and June 27-30, 2017, and July 5-7, 2017, was secured as continuation dates for the voir dires . Trial dates were set for July 10-13 and 17-20, 2017. [ 62 ] This application took place on June 27, 28 and 29, 2017. [ 63 ] On July 5, the court indicated that the defence application under s. 11 (

b) was granted. A judicial stay of proceedings was entered with reasons to follow. These are those reasons. Application [ 64 ] The total delay is 33 months. This is 15 months above the ceiling of 18 months provided for provincial court matters. [ 65 ] Next, delay attributable to the defence must be subtracted. There was no delay waived by the defence.

As far as delay caused by defence conduct, the Crown argues that late Charter notices and underestimations of the time required for various applications should be attributed to the defence and deducted from the total delay. [ 66 ] 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. [ 67 ] The record indicates that Charter notices and inaccurate estimates of court time required were not the direct or sole causes of the delay here.

Any expanded inquiry as to alleged Charter breaches did not materially expand the complexity of this case. [ 68 ] The analysis with respect to availability and “offered dates” is extremely complicated in this case given the fact that were discussions relating to this issue made “off the record” in Courtroom 307 (Initial Appearance Court - I understand this court is now a court of record for obvious reasons), in Chambers during Pre-Trial discussions, and appearances made by agent for counsel who were not entirely briefed as to counsel’s availability.

However, 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. [ 69 ] I cannot find that there is any delay to be deducted as defence delay. [ 70 ] The evidentiary burden is on the Crown to rebut the presumptive unreasonableness. The Crown says here that there are exceptional circumstances that are beyond the Crown’s control. [ 71 ] There are a number of circumstances the Crown points to as creating complexities in this case that warrant characterization as an exceptional circumstance.

For instance, the “ McKay ” request took some six months to respond to. The Crown maintains that the law was developing at the time and it took some period of time to vet and review the material. The Crown (here including the police) should have, in my view, directed sufficient resources to this task so that a more timely response could be made. [ 72 ] The Crown argued that this was a particularly complex case as that term is described in Jordan and Cody .

However, a review of the facts in Cody instantly reveals (para. 40 ) that the Cody case involved a considerably more complex set of circumstances. [ 73 ] The case at bar involved a few weeks of surveillance and the execution of some search warrants. It was not a particularly complicated matter in the scheme of things. [ 74 ] As far as discrete events, I have considered the arguments of counsel for Crown in this regard.

They list a variety of events that they seek to have characterized as discrete events that should result in a quantitative deduction of certain periods of time. [ 75 ] On this application we spent three days parsing out every portion of the record in this case dealing with anything that might be relevant to the issue of whether something could be called a discrete event or not. It would not be helpful to address individually all of these arguments. As the Jordan court found, “Each day of the proceedings from charge to trial is argued about, accounted for, and explained away.

This micro-counting is inefficient, relies on judicial "guesstimations", and has been applied in a way that allows for tolerance of ever-increasing delay.” [ 76 ] Suffice it to say that there is very little here that could be categorized as the kind of discrete event that the Supreme Court is referring to. The ceiling took into account the normal vicissitudes of a modern trial.

Eighteen months for a trial in provincial court is, in and of itself, an extraordinarily long time to conduct a trial (even a multi-day trial). [ 77 ] As to the transitional exceptional circumstances referred to by the Supreme Court, I do not find that the qualitative analysis required by this step could possibly result in any scenario that would reduce the 33 months of total delay here to one that would fall below the ceiling for provincial court. [ 78 ] Even under the Morin framework prejudice could be inferred for long delays. This is easily one of those cases.

[ 79 ] Even if a few months could be properly deducted from the total delay for short periods of time it would still be nowhere near a period of time that could be called reasonable. [ 80 ] A balancing of the factors under the Morin analysis would easily have favoured a stay of proceedings in this case. One must remember that the Justice Sopinka opined that a delay of 8-10 months for a case tried in the provincial court was the guideline. [ 81 ] There were steps the Crown took in this case that clearly indicated their desire to have the matter heard expeditiously.

On the other hand, there were other actions that I have spoken about above that had the effect of creating unreasonable delays in the process. In addition, the court did not do all it could do to ensure that there was early court time available where the judge was also available. It should be a rare occasion when the judge is unavailable due to previously assigned judicial activities that cannot be changed to accommodate a trial that is carrying on for far too long.

The accused and the public deserve better. [ 82 ] In this analysis, I have also reviewed several post- Jordan cases with a view to determining how the courts have applied the new framework. Those cases are: R. v. Cody 2017 SCC 31 R. v. Williamson 2016 SCC 28 R. v. Chappell 2017 BCSC 1003 R. v. Middleton 2017 BCPC 67 R. v. Cooper 2017 BCPC 11 R. v. M.N.T. 2016 BCPC 338 R. v. Dass 2016 BCSC 1701 R. v. Curry 2016 BCSC 1435 R. v. Singh 2016 BCCA 427 R. v. Serban 2017 BCSC 17 R. v. Giles 2017 BCSC 73 R. v. Herman 2017 BCSC 215 R. v. Matheson 2017 BCSC 166 R. v. Christhurajah 2017 BCSC 820 R. v.

Truong 2017 BCSC 736 [ 83 ] Based on my reasons above, I conclude that there has been a breach of s. 11(

b) of the Charter in this case. The remedy is a Stay of Proceedings. ________________________________ The Honourable Judge David St. Pierre Provincial Court of British Columbia