R. v. S.S.A. et al. Date:, 2017 BCPC 76

Citation: R. v. S.S.A. et al. Date: 20170208 2017 BCPC 76 File No: 23471-7-C; 23471-8-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. S.S.A., K.S.N. and A.P. ORAL RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE JUDGE P.R. MEYERS YOUTH MATTER - RESTRICTION ON ACCESS Sections 118 and 110 YCJA Counsel for the Crown: R. Edwards Counsel for the Accused S.S.A.: M. Connaghan Counsel for the accused K.S.N : J. Saulnier

Counsel for the accused A.P. : D. Wiebe Place of Hearing: Vancouver , B.C. Date of Hearing: February 8, 2017 Date of Judgment: February 8, 2017 [ 1 ] THE COURT: The defence has applied for a stay of proceedings on the basis of an unreasonable delay from the date the Information was laid until the trial is expected to end. Their argument is that the delay in this case is contrary to s. 7 and s. 11(

b) of the Charter and contrary to the express guidelines set out in the recent Supreme Court of Canada case of R. v. Jordan , 2016 SCC 27 , as it applies to "transitional cases." [ 2 ] K.S.N., A.P., and -- give me that pronunciation again? [ 3 ] MR. CONNAGHAN: S.S.A. [ 4 ] THE COURT: S.S.A., K.S.N. and A.P. Jr. were all youths on August 18th, 2015, when the offences were alleged to have occurred.

They face charges of robbery resulting from an incident on August 18th, 2015, in Vancouver. [ 5 ] It is alleged that at 12:30 a.m., the three youths, together with one adult, who is still pending trial in the adult criminal court, accosted four young people sitting on a park bench. It is alleged that A.P. Jr. had an imitation firearm in his waistband, S.S.A. had an imitation CO2 pistol in his jacket, and K.S.N. had two pellet gun magazines in his pocket (and no weapons). Two cellphones were taken from the victims. The youths and the adult ran off.

They were all arrested by the police at gunpoint shortly thereafter. [ 6 ] The Information was laid on August 18th, 2015. The first trial was set to take place on May 2nd, 2016, but had to be adjourned due to the Ad Hoc Crown Counsel tragically being diagnosed with terminal cancer. The second trial, that is, the current trial, is set to complete on February 17th, 2017. The delay between the laying of the Information and the anticipated completion date of the trial, February 17th, 2017, turns out to be precisely 18 months which, of course, is the pivotal time that the recent R. v.

Jordan case set out as the crucial time for any application for a stay of proceedings pursuant to s. 7 and 11(

b) of the Charter . [ 7 ] The Defence and Crown have referred the Court to approximately 22 decisions. Although I have read, studied, and considered each of those Decisions in coming to my final Decision in this case, I do not intend to review, cite, or quote from most of them. Instead, my plan is to cite the principles and guidelines gleaned from the binding Superior Court precedents, influential lower Court precedents, and the applicable Statutes.

For those who wish to view the citations for those cases, I direct that should anyone order a transcript of this oral Judgment, that they be provided with a list of these cases, which list has been filed in the Court, and Madam Registrar, I will give you that. [ 8 ] The Defence and Crown agree that none of the delay in this case is attributable to the defence. However, the R. v.

Jordan case introduced a new concept requiring the defence to take meaningful steps to expedite the process, but this obligation would be applicable only to cases where the delay was under 18 months and the defence was still arguing for a stay of proceedings. Defence and Crown say that if the delay in this case is under 18 months, that will be the applicable situation in the Court.

The prejudice argument is still available and significant in transitional cases such as this case, if the delay is ruled to be reduced to below the 18-month ceiling. [ 9 ] In the Case at Bar, the Defence argued that they did take meaningful steps to expedite the process whereas the Crown argued that they did not. [ 10 ] The Defence and Crown disagree whether or not there was an unforeseeable intervening and independent event, that is, the death of the Ad Hoc Prosecutor. [ 11 ] They also disagree as to whether or not the Crown did everything that could reasonably be expected of them to do to rectify the potential delay in starting the trial as scheduled on May 2nd, 2016, and/or took all reasonable steps to make sure that if the May trial had to be adjourned, that the new trial would take place and finish within a reasonable time thereafter. [ 12 ] The Defence and Crown agree that the guidelines set out in R. v.

Jordan relating to the cases which began before the R. v. Jordan decision, but were still pending in the courts, called the transitional cases, set out the guidelines to be followed when deciding this Application. [ 13 ] The statutory provisions, the principles, and the guidelines that underline my reasoning and my decision in this case are as follows. (

a) The Charter of Rights applies to Youths charged under the Youth Criminal Justice Act . (

b) The

Preamble to the Youth Criminal Justice Act specifically sets out that Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms including those stated in the Canadian Charter of Rights and Freedoms , Canadian Bill of Rights , and have special guarantees of those rights and freedoms.

Although being a Party to a Treaty is very influential, it does not have the same mandatory effect as a Statute passed by the Government of Canada. (c) Section 3(1)(b)(iii) of the Youth Criminal Justice Act provides that there must be enhanced procedural protection to ensure that young persons are fairly treated and that their rights are protected. (d) Section 3(1)(b)(iv) of the Youth Criminal Justice Act provides that there must be timely interventions to reinforce the link between the offending behaviour and their consequences. See the cases of R. v. R.C.D. and R. v. G.C.F.

(e) Section 3(1)(b)(

v) of the Youth Criminal Justice Act provides that given young persons' perception of time, the persons responsible for the enforcement of the Act must act with promptness and speed. See the cases of R. v. G.C.M. and R. v. T.D.U.G. , 2012 BCPC 373 . (

f) The R. v. Jordan case set the presumptive ceiling of 18 months as being the acceptable time delay from the date the Information was laid until the anticipated end of the trial for all adult criminal court proceedings. (

g) The R. v. Jordan case decided that if the period of delay exceeds 18 months, the delay will be presumed to have been an unreasonable delay under s. 7 of the Charter of Rights and will result in a stay of proceedings unless the Crown is able to establish that the delay was due to the defence, or there was a discrete unforeseeable event that caused the delay, or that the case was particularly complex thereby materially contributing to the delay. (

h) The R. v. Jordan case decided that if the 18-month ceiling were exceeded, then unless the Crown were able to satisfy the court that: A. a discrete exceptional but not necessarily rare, reasonably unforeseeable or reasonably avoidable event occurred that caused the delay to be over the 18-month ceiling; and B. the Crown could not have reasonably prevented or remedied the delay caused by the exceptional circumstances; the court must order a stay of proceedings. It would be unnecessary for an accused to show any specific actual prejudices that befell him or her due to the delay. (

i) The R. v. Jordan case decided that special rules should apply to cases which were "in transition," that is, cases that involved an Information and trial proceedings which were still in progress at the time the R. v. Jordan was rendered. (

j) The R. v. Jordan case decided that a mixture of the guidelines from the R. v. Morin decision and the R. v. Jordan decision, should apply to cases in transition and those rules would include the ability of the defence to argue actual prejudice as a ground for staying trial proceedings which were still under the 18-month ceiling. (

k) The R. v. Jordan case decided that the issue of actual prejudice to the accused was no longer to be a factor in cases that were entirely post- Jordan because the prejudice consideration was already built into the decision to set 18 months as the ceiling for trial delays in all Provincial Courts. However, most important for the Case at Bar is that R. v. Jordan still allowed for the "actual prejudice argument," to remain in play for the transitional cases. (

l) The R. v. Jordan case decided that the Crown could argue the factual 18-month-plus trial delay should be reduced to under the 18-month ceiling delay. The Crown would have to satisfy the judge that an exceptional, discrete, and reasonably unforeseeable event occurred and that was the factor causing the delay. (

m) If the Crown were to satisfy the judge as to the exceptional event, then the defence would have the right to prove that the accused had suffered specific, material, and actual prejudice and the defence would be able to argue that the judge should order a stay of proceedings in the case due to the actual prejudice suffered by the accused, albeit during a time before the 18-month ceiling delay, see R. v. Jordan , paragraphs 94 to 104 ; see also R. v. Coulter , 2016 ONCA 70 ; R. v. Hill , 2016 ONCJ 623 , at paragraph 34 ; or R. v. Tran , 2016 ONCJ 528 , at paragraph 33 to 42 ; R. v. M.N.T. , 2016 BCPC 338 ; R. v.

Manh , M-a-n-h, 2016 ONSC 6970 , at paragraphs 37 to 41 ; R. v. Picard , 2016 ONSC 7061 , at paragraph 77 . [ 14 ] The R. v. Jordan case dealt with adults, but is equally applicable, in my view, to Youths and, in fact, with respect to the provisions of the Youth Criminal Justice Act that I have quoted, apply even more strenuously to Youths than they do to adults. [ 15 ] On March 26th, 2016, Ms. Dance was appointed Ad Hoc Counsel to prosecute the case. During the last week of April of 2016, both the Administrative Crown Counsel and Mr. Saulnier, counsel for Mr. K.S.N., tried to contact Ms.

Dance by telephone and in writing, but without success. It was only between April 26, 2016, and a couple of days later that it became clear to the Administrative Crown and all Defence Counsel that Ms. Dance was extremely ill and would not be able to attend the trial set for May 2nd, 2016. [ 16 ] Ms. Turnbull, Crown Counsel, immediately attempted to locate a Crown Counsel within their office or an ad hoc Crown Counsel who would be available to step in and take over the trial.

She was not able to obtain anyone who could be available and ready to prepare and conduct a prosecution on May 2nd, 2016, which was approximately one week away. [ 17 ] Ms. Selbie MacDonald, Crown Counsel, immediately advised all Defence Counsel that the Crown would forthwith be seeking an adjournment of the trial. [ 18 ] The Crown made their adjournment application on April 27th, 2016. All of the Defence Counsel formally opposed the adjournment application.

The Adjournment was granted on May 2nd, 2016. [ 19 ] The first question then becomes, does the diagnosis of Ad Hoc Crown Counsel's terminal illness just a week or so before the scheduled May 2nd, 2016 trial date, constitute an exceptional and reasonably unforeseeable event? The answer clearly is yes. This is the very type of exceptional reasonably unforeseeable event that was referred to in the R. v. Jordan case. Indeed, a medical emergency involving one of the lawyers in the case was actually given as a specific example of what would amount to "an exceptional and reasonably unforeseeable event".

See Paragraph 72 of the R. v. Jordan case. [ 20 ] In another case, R. v. Coulter , the Crown Counsel was involved in a serious car accident resulting in a six-month trial delay. The court ruled this was a discrete event constituting an exceptional and reasonably unforeseeable event. The case citation for Coulter has already been given.

[ 21 ] In the Case at Bar, I find that the sudden and last-minute illness of Ms. Dance constituted an exceptional and unforeseeable event which justifies a determination that the delay in this case should be considered as one coming below the 18-month delay ceiling as described in R. v. Jordan . [ 22 ] In the Case at Bar, I find that there were no unreasonable delays between the swearing of the Information and the date in May 2016 which the first date that the trial was expected to finish by. [ 23 ] In the Case at Bar, I find that the actions of the Crown as soon as they became aware of the seriousness of Ms.

Dance's illness were swift, they were reasonable, and they cannot be criticized. The Crown immediately notified all Defence Counsel, they immediately attempted to find a replacement Crown by searching both inside and outside the Crown Counsel Office, and they forthwith made an Application for an Adjournment.

When the Adjournment was granted, the Crown made every effort to make themselves and their witnesses available for the very earliest court dates that were available for the Court and for all counsel. [ 24 ] Accordingly, I find that this case shall be considered as a case falling below the 18-month delay ceiling. [ 25 ] Turning to the actions of the Defence Counsel, as outlined earlier, both the Crown and the Defence agreed that there was nothing that any of the Defence Counsel did that could constitute them being the cause of any delays prior to the May 2nd, 2016, trial date.

Further, all Defence Counsel opposed the Crown's Adjournment Application and, after the Adjournment was granted, they did everything they could to facilitate a new trial being set to start and end at the earliest time in the future. [ 26 ] Mr. Saulnier, counsel for Mr. K.S.N., was singularly proactive in trying to ascertain whether there might be an issue with Ms. Dance's health and whether she would be ready, willing, and able to conduct the trial on May 2nd, 2016. He telephoned and emailed Ms. Dance's office on multiple occasions and finally went to the Crown Counsel Office where he initiated a call to Ms.

Dance's office in the presence of Crown Counsel and then, very shortly after that, he was able to ascertain the unfortunate news about Ms. Dance and he immediately communicated that information to the Crown. [ 27 ] Even before Ms. Dance was assigned to the case, Mr.

Saulnier had been writing and pressuring the Crown to have a prosecutor assigned to the case so that he might obtain full disclosure, discuss evidentiary issues and possible admissions, all being done for the sole purpose of expediting and shortening the wait time for the trial of his client. [ 28 ] I find that before May 2nd, 2016 Trial Date, none of the counsel were responsible for any delays, nor were any of the counsel responsible for any delays after the May 2nd, 2016. By "any counsel," I include all Defence Counsel and Crown Counsel. [ 29 ] I find that before the May 2nd, 2016, Trial Date, only Mr.

Saulnier could be categorized as "proactive" insofar as trying to expedite the trial. I find that, after it was learned that Ms. Dance was unable to conduct the trial, Mr. Saulnier and Crown Counsel were the ones who were proactive in trying to expedite a new early trial date. [ 30 ] The Conclusion that I reach is that Mr. Saulnier, Counsel for Mr. K.S.N., was the only defence counsel who aggressively was proactive in attempting to get the two trials on as quickly as possible. That is not intended to be a criticism of the other Defence Counsels.

However, although they did nothing to cause delays, they were not as aggressive and proactive as was Mr. Saulnier. In the end, however, the absence of proactivity on their parts will be inconsequential to their clients' final standing on this Application for a Stay of Proceedings. [ 31 ] At this point in the Judgment, I have decided that the exceptional event that occurred placed this case below the ceiling of 18 months. [ 32 ] As I said, no Defence Counsel nor Crown were responsible for any delays; Crown Counsel and Mr.

Saulnier were both positively proactive in attempting to retain the May 2nd, 2016, date; and as I also said, no Counsel did anything to stand in the way of obtaining the earliest trial on both occasions. [ 33 ] This leads me to discuss the last question which is: Was there any actual, serious prejudice suffered by any of the Accused persons? [ 34 ] Remember that the R. v. Jordan Decision still kept this issue alive if dealing with transitional cases. [ 35 ] Insofar as Mr. S.S.A. and Mr.

A.P. are concerned, there was no evidence produced to show anything additional to the "usual prejudices" that are associated with anyone who is charged with serious criminal or youth offences. [ 36 ] This is not meant to diminish the anxieties, uncertainties and fears that are experienced by any adult and indeed perhaps even more particularly experienced by any Youth while they await their trials.

However, the case law has developed that, in order for there to be a judicial stay of proceedings due to a delay in the trial, the defendant must show some additional and special actual prejudices that they suffered as a result of the delay. [ 37 ] Mr. S.S.A. and Mr. A.P. have failed to demonstrate that and accordingly, due to this reason and other findings of fact that I have previously made in this Decision, their Application for a Judicial Stay of Proceedings is rejected. [ 38 ] Mr. K.S.N.'s case is different.

His counsel was proactive prior to May 2nd, 2016, and after May 2nd, 2016, in trying to speed up the trial process. Furthermore, and most important, his counsel has proved that Mr. K.S.N. has suffered what the courts have referred to as "actual and real prejudice" as a result of the delay between the laying of the Information and the anticipated eventual completion of this Trial. [ 39 ] To illustrate the actual and real prejudice suffered by Mr. K.S.N., I propose to read out parts of his Affidavit which was filed as Exhibit 7 in these Proceedings [as read in]:

I graduated from [omitted for publication] in Surrey in June 2016. It is my intent and hope to go to post-secondary school as soon as this case is finished, but my application is deferred while this case is pending. After I was charged in August of 2015, I was contacted by S.C., the vice principal at my school, [omitted for publication], and R.R., the manager of [omitted for publication] from Surrey Schools. I had gone to [omitted for publication] since Grade 8. I expected to finish Grade 12 there. I was a good student. I had never been suspended nor had any problems with the administration. However, Mr.

C. and Mr. R. told me that I was not allowed to return to the school because of these charges. My co-accused did not go to [omitted for publication]. I understand that the victims are from out of the province. Nonetheless, I was moved to [omitted for publication] to start my Grade 12 year there. I was very excited about Grade 12 at [omitted for publication] and the grad activities. I was disappointed that I had to miss several activities. After the first semester, I pleaded my case with the administration and was allowed to return to [omitted for publication] to finish Grade 12.

Although I was pleased to be back at my school, it was still a difficult grad year for me. I missed the first semester, I was late for grad pictures, and was behind in completing my graduation requirements which was stressful. Further, I had a bail curfew of 9:00 p.m. on weekdays and 10:00 p.m. on weekends. There were multiple grad activities that I missed out during the year due to this curfew. Outside of grad activities, I was also not able to go out of town with a friend or my cousin or even have a sleepover.

I could not go to a late movie or party unless I got a curfew letter from my probation officers in advance. It was hard not being able to do the same things as my schoolmates. When the trial was adjourned on May 2nd, the prosecutor consented to delete my curfew. Attached as Exhibit B to my affidavit is a copy of my bail conditions as of May 2nd, 2016. Then, on May 2nd, 2016, the prosecutor again consented to amend my bail to allow me to have a knife for work at [omitted for publication]. For the last year, I have been unable to leave British Columbia due to these charges.

I understand that I would turned back from the border and could be banned from returning to the U.S. As a result, I have either missed family vacations or my family has had to cancel its plans. My family went on a vacation to Portland, Oregon, without me this summer. This summer, my family planned to go to a wedding in Kent, Washington, but cancelled those plans because I could not go. Most significant to me, the long delay to my trial has impacted on my post-secondary education future plans. It has been my dream to be a police officer with either the VPD or RCMP.

To accomplish my goal, I have volunteered about twice a week with the [omitted for publication] since July 2014. I have volunteered over 200 hours in that time. I monitor neighbourhoods and report suspicious activity. I act as security at city events to assist the RCMP. Last year, I was supposed to be promoted to team leader with [omitted for publication] with training starting mid-May 2016. Unfortunately, because of these charges, I was put on probation. As a result, although I continue to volunteer, my responsibilities and tasks are now limited. Nonetheless, I have continued to volunteer regularly.

In the last year while working with the [omitted for publication], I have called police and even assisted with arrests. On one of these cases, I have been given notice that I will need to testify as a witness for the Crown at a criminal trial regarding a case where I helped the RCMP officer who was being assaulted. As mentioned, it has always been my dream to be a police officer. It was long my intention to start post-secondary courses at the [omitted for publication] in New West as soon as possible following high school graduation.

In the spring of 2016, I applied for [omitted for publication] in the Law Enforcement Studies Diploma Program to start September of 2016 after this trial was supposed to be finished. There is a large waitlist for the program, but I was lucky enough to be conditionally accepted. This summer, I was told, because of these outstanding charges, my application was being moved to January 2017 where I need to resubmit a criminal record check and transcripts. In the spring of 2016, I applied to the [omitted for publication] which was to be this last summer following high school.

This camp is intended to prepare students who will be attending [omitted for publication] and who otherwise want to be in law enforcement. Unfortunately, this application was also deferred again because of these outstanding charges. Constable Tim Callahan is in charge of the program. He knows about my charges. He said that once this case is done, he will consider my application. I was also going to apply to the Richmond RCMP Community Policing Program. However, I understand that I would again be deferred because of these charges so I continue to wait before I can apply.

I had hoped that I could go into [omitted for publication] in September of 2016. At least I could start the next semester in January of 2017. I am currently "conditionally accepted" for January 2017, but if we continue with the current trial dates, then I cannot start at [omitted for publication] until September of 2017. Generally, waiting for this trial has been extremely stressful to me. This is the first and only time I have been in trouble with the police or charged with a crime. I find myself thinking about it constantly. I wonder whether it will ruin my future goal of being a police officer.

I often have trouble sleeping. I sometimes lose my appetite or feel sick to my stomach because of the stress. During school, I would have trouble concentrating and would think about these charges and whether my career goals will be ruined. My stress increased leading up to my trial in May of 2016. I was scared, but thought at least it was almost behind me. Then when the trial got adjourned, it was back to the beginning. Now, I am waiting many more months with this trial hanging over my head. I am working full-time when I want to be going to school.

I don't know which way the trial will go so I cannot even plan for the future. The uncertainty is the hardest thing. I am someone who respects the police and wants to be a police officer, but since being charged, I have felt like I am one of the bad guys. Three times since I was charged, I have been pulled over by the police when I was driving. Once I was parking. Another time I was followed about five minutes before being pulled over. Once my passenger had to show ID just because he was with me. None of these times were for driving infractions.

On each occasion, the police made it clear that they were just checking on me because of these charges. Because of my volunteer work, I know that, each of these times, it gets put on my police record and I find this very stressful. [ 40 ] The Court grants a Judicial Stay of Proceedings with respect to Mr. K.S.N.

[41] The Trial of Mr. S.S.A. and Mr. A.P. will proceed forthwith. [42] Gentlemen, that is the Decision. [RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS CONCLUDED] APPENDIX Cases Considered by The Honourable Judge P.R. Meyers R. v. S.S.A., K.S.N. and A.P. Court File 23471 Robson Square Provincial Court R. v. Serban, 2017 BCSC 17 R. v. Morin, (SCC), [1992] 1 SCR 771 R. v. M. (G.C.), (ON CA), [1991] O.J. No. 885 R. v. R.C.D., 2006 BCCA 211 , [2006] B.C.J. No. 947 R. v. Jordan, 2016 SCC 27 , [2016] SCJ 27 (S.C.C.) R. v. Coulter 2016 ONCA 704 , [2016] O.J. No. 5005 R. v. Singh, 2016 BCCA 427 R. v.

Manh, [2016] O.J. 6178 R. v. Ghandi, 2016 ONSC 5612 , [2016] O.J. No. 4638 R. v. Picard, 2016 ONSC 7061 , [2016] O.J. No. 5845 R. v. Williamson, 2016 SCC 28 R. v. Vassell, 2016 SCC 26 R. v. TR, (ON CA), [2005] O.J. No. 2150 (C.A.) R. v. RR, 2011 NSCA 86 R. v. MNT, 2016 BCPC 338 R. v. TDUG, 2012 BCPC 373 R. v. Kaiser and Kaiser, 2011 BCPC 168 R. v. NDZ, 2004 BCPC 118 R. v. Tran, 2016 ONCJ 528 R. v. Hill, 2016 ONCJ 623 R. v. CLP, 2016 SKPC 146