R. v. Bowser, 2016 NSPC 34

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Bowser, 2016 NSPC 34 Date: April 14, 2016 Docket: 2379172-73, 2379175-76 Registry: Dartmouth Between: Her Majesty the Queen v. Joseph Wayne Bowser and Ricky Daniel Cameron Decision on Charter

Section 11(

b) Application Judge : The Honourable Theodore K. Tax Decision : April 14, 2016 Charges : That they between the 21 st day of October, 2011 and the 24 th day of October, 2011 at or near Dartmouth, Nova Scotia did unlawfully have in their possession property of a total value exceeding $5,000.00, the property of Mather Freight Management, knowing that it was obtained by the Commission in Canada of an indictable offence, to wit, theft, contrary to

section 355 (

a) of the Criminal Code . And Further that Ricky Daniel Cameron, at the same time and place aforesaid, did unlawfully steal property of a total value not exceeding $5,000.00, the property of Mather Freight Management, contrary to

section 334 (

b) of the Criminal Code . And Further that Joseph Wayne Bowser at the same time and place aforesaid, did unlawfully break and enter a place, to wit, a business situate at 165 Burbridge Avenue, Dartmouth, Nova Scotia and did commit therein the indictable offence of theft, contrary to section 348(1) (

b) of the Criminal Code . Counsel : Peter Craig for the Crown Bernard Thibault for the Joseph Wayne Bowser Patricia Jones for Ricky Daniel Cameron By The Court (Orally) : [ 1 ] Mr. Joseph Bowser and Mr. Ricky Cameron have been jointly charged with having possession of stolen property of the total

value exceeding $5,000.00, namely, the property of Mather’s Freight Management, knowing that it was obtained by commission in Canada of an indictable offence, to wit, theft, contrary to

section 355 (

a) of the Criminal Code , between the 21 st day of October 2011 and the 24 th day of October 2011 at or near Dartmouth, Nova Scotia. [ 2 ] In addition, Mr. Bowser faces an individual charge that, at the same time and place, he did, unlawfully, break and enter a business place situate at 165 Burbridge Avenue, Dartmouth, Nova Scotia and did commit the indictable offence of theft from a business contrary to section 348(1) (

b) of the Criminal Code . Mr. Cameron also faces an individual charge that, at the same time and place, he did unlawfully steal property of a total value not exceeding $5,000.00, the property of Mather’s Freight Management contrary to

section 334 (

b) of the Criminal Code . The Crown proceeded by indictment on all charges before the Court. [ 3 ] The issue to be determined on this application is as follows:

a) Mr. Bowser and Mr. Cameron were charged with the offences before the Court in an Information which was sworn on October 28, 2011. They elected to have a trial in the Provincial Court and entered not guilty pleas on September 13, 2012. The trial evidence commenced on July 22, 2013 and concluded on July 27, 2015. Mr. Bowser and Mr. Cameron have submitted that their “right to be tried within a reasonable time” as guaranteed by

section 11 (

b) of the Charter has been infringed and they seek a stay of proceedings pursuant to section 24(1) of the Charter . The issue for the Court to determine is whether there was an infringement of that Charter right and, if so, whether in all the circumstances, it is “appropriate and just” to order a stay of proceedings Factual Overview of the Charter Issue [ 4 ] Mr. Bowser was arrested and brought before the Court on October 26, 2011, to be arraigned on an Information sworn October 26, 2011, which charged him with the break, enter and theft of property from Mather’s Freight contrary to section 348(1)(

b) of the Code and the possession of stolen property of Mather’s Freight, contrary to

section 355(

a) of the Code on or about October 24, 2011 in Dartmouth, Nova Scotia. At the time of his arrest, he was not jointly charged with Mr. Ricky Cameron. Mr. Bowser’s bail application was adjourned for one day and on October 27, 2011, he was released on a recognizance with the surety under terms of house arrest and directed to come back to the Court on January 6, 2012. [ 5 ] Mr. Cameron was arrested by the police and then made his first appearance to be arraigned on an Information sworn on October 28, 2011. The Information which was sworn on October 28, 2011, was essentially a replacement information, but it now contained three charges:

(1) Mr. Cameron being jointly charged with Mr. Joseph Bowser with the offence of the possession of stolen property contrary to

section 355(

a) of the Code on or about October 24, 2011 in, Dartmouth, Nova Scotia;

(2) Mr. Cameron facing a charge relating to the theft of property from Mather’s Freight Management contrary to

section 334(

b) of the Code ; and

(3) Mr. Bowser facing the break, enter and theft charge of the business premises of Mather’s Freight Management contrary to section 348(1)(

b) of the Code . On November 1, 2011, Mr. Cameron was released on a recognizance with the surety and a curfew condition and he was directed to come back to Court for election and plea on January 6, 2012. [ 6 ] On January 6, 2012, Mr. Cameron and Mr. Bowser made their first joint appearance before the Court. Once counsel confirmed that they were solicitors of record and that they had received disclosure, Mr. Cameron and Mr. Bowser elected the Provincial Court and entered not guilty pleas, on September 13, 2012.

Based on the estimated trial length provided to the Court by Defence Counsel and the Crown Attorney, the Court set three days for trial - July 22, 23 and 24, 2013. [ 7 ] In addition to setting the three days for trial in July, 2013, the Court directed that a pre-trial conference would be held with counsel on January 21, 2013. During that pre-trial conference, none of the parties advised the Court that any additional days for trial would be required.

As a result, the three days which had been scheduled for the hearing of trial evidence were confirmed. [ 8 ] As it turned out, the estimate of three days for trial was a significant underestimation of the time needed to hear trial evidence. Further days were required and trial evidence was heard or scheduled to be heard on 13 days, namely on: July 22, 23 and 24, 2013; March 26, 2014; April 2, 2014; April 30, 2014; May 7, 2014; July 25, 2014; December 5, 2014; February 13, 2015; February 23, 2015, May 20, 2015 and concluded on July 27, 2015.

Additional court time had been reserved for the completion of the trial evidence on July 28, 2015, but with the closing of Crown’s case on July 27, 2015, the following day was no longer required for trial evidence. [ 9 ] Following the conclusion of the Crown’s evidence on July 27, 2015, the Court granted Defence Counsel a short adjournment to consider whether either one wished to call any Defence evidence. Both Defence Counsel confirmed that they would not be calling any Defence evidence. Then, the Court confirmed that the trial record was now complete.

At that point, the Crown Attorney requested the opportunity to file written submissions to cover the factual and legal issues of the case, given the number of days that the matter had been before the Court. The Crown Attorney added that his request to file written briefs was not contingent upon the preparation of any transcripts of the trial proceedings and that he would have his brief prepared within 3 weeks to one month.

Both Defence Counsel stated that it was their preference to proceed directly to oral submissions the next day, because of a potential concern that written submissions might delay the ultimate decision and in the case of Mr. Cameron, this pending matter might also affect his parole hearing on the federal sentence on an unrelated matter. [ 10 ] Following a brief discussion with respect to the filing of written submissions on the substantive trial issues and potential Defence applications pursuant to

section 11 (

b) of the Charter , the Court confirmed its earlier decision that the parties would file written briefs with respect to their position on the trial issues and then set dates. The Crown Attorney’s brief on the substantive trial issues was to be filed by August 31, 2015 with the Defence Counsels’ replies to be filed by September 18, 2015. [ 11 ] Once the Court had determined that written briefs would be filed for the substantive trial issues and as dates were being discussed for the filing of those briefs, Defence Counsel for Mr. Cameron stated that “if we are going to adjourn for submissions, Mr. Cameron will probably perfect his Charter motion” and that she would like to have her client’s

section 11 (

b) Charter application heard at the same time as their substantive trial submissions. Defence Counsel for Mr. Bowser advised of the Court that, as a result of those developments, it was “likely” that he would also to file a Charter application alleging a violation of his client’s

section 11(

b) Charter

right “to be tried within a reasonable time.” [ 12 ] Furthermore, on July 27, 2015, once the Court was advised of the intention of both Defence Counsel to file a

section 11 (

b) Charter application, the Court also directed Defence Counsel to obtain transcripts of each and every one of the preliminary proceedings in relation to this trial as well as any portions of the trial transcript which may have dealt with other issues than trial evidence itself. [ 13 ] In addition, the Court established August 21, 2015 as a status date to determine the estimated date when the transcripts would be available for the

section 11 (

b) Charter application. It was also anticipated that on that status date, the Court would establish the dates for the formal filing of their Charter Notices with an overview of the points in issue in relation to the alleged Charter infringement as well as the dates for the filing of briefs on the Charter application. [ 14 ] When the parties appeared in Court on the August 21, 2015 status date, it was still unclear when the certified court reporters would have the transcripts available for review by the parties and the Court.

Given the fact that the Court was advised that the request for the preparation of transcripts had been recently sent, it was determined that December 3, 2015 at 9:30 a.m. [for the full day if needed] would be scheduled for the supplementary closing arguments, first on the Charter application and then on the substantive trial issues. The Court also directed that the formal Charter notice was to be filed on or before August 31, 2015, with the Charter briefs of Mr. Bowser and Mr.

Cameron to be filed by October 23, 2015, and the Crown reply to be filed by November 13, 2015. [ 15 ] The Crown Attorney’s brief on the substantive trial issues dated August 31, 2015 was received by the Court on September 1, 2015. The substantive trial brief of Mr. Bowser’s Defence Counsel was received by the Court on September 21, 2015. The brief of Mr.

Cameron’s Defence Counsel was received by the Court on September 23, 2015. [ 16 ] Although the Court had established the date for the supplementary oral submissions on the substantive trial issues and had established filing dates for the brief on the Charter application on August 21, 2015, it was also recognized that the December 3, 2015 hearing date was based on the parties receiving transcripts of proceedings in late September or early October, 2015, in order to provide the parties with a reasonable opportunity to review them prior to filing their briefs. [ 17 ] The Court had already advised counsel that it would not be logical to address the substantive trial issues first and then determine the Charter question, given the stage in the trial proceedings at which the Charter application was being advanced by Defence Counsel.

As a result, on August 21, 2015, the Court reiterated its earlier decision that it would have to address the Charter question first, given the potential impact on the substantive trial issues, but agreed with counsel that the submissions on the Charter question and the substantive trial issues could be made on the same date. [ 18 ] In addition, on August 21, 2015, the Court also confirmed that, if Defence Counsel encountered problems in obtaining the transcripts of proceedings from the certified court reporters which might impact the scheduled dates for the filing of written briefs, then, Defence Counsel were to request a further status date with the Court in early October, 2015.

Counsel for Mr. Bowser wrote to the Court on October 5, 2015 to indicate that the transcripts would probably be ready around October 20, 2015, which was only 3 days before the scheduled date for the Defence briefs. As a result, he requested permission to delay the filing of Mr. Bowser’s submissions until November 10, 2015. Given the impact of granting that request on the Crown Attorney’s date for filing a reply as well as subsequent correspondence from Defence Counsel for Mr. Bowser, a further status date was set for November 9, 2015.

The status date was to obtain an update on the expected date when the transcripts of the trial proceedings would be available to the parties and the Court and make any other adjustments to the dates for the filing of briefs. [ 19 ] On the status date of November 9, 2015, the Court was advised that the transcripts were being prepared, they were probably going to be well over 1600 pages in length and Defence Counsel had now been advised that they would only be ready a few days prior to December 3, 2015.

Given the anticipated date for the receipt of the transcripts and their estimated length, all of the parties agreed and the Court confirmed that the December 3, 2015 hearing date would be used as a further status date and for setting the date for oral submissions, as well as the dates for the filing of the Charter briefs. [ 20 ] On December 3, 2015, the parties advised the Court that they had now received the complete transcript of proceedings, which included approximately 1650 pages for the 13 days during which trial evidence or proceedings were heard in whole or in part, as well as approximately 60 more pages of transcripts in relation to most of the Pre-Trial Appearances of Mr.

Bowser and Mr. Cameron. [ 21 ] The transcript of the Pre-Trial Appearances included appearances in court on October 28 and November 1, 2011; January 6, April 3, July 30 and September 13, 2012 was prepared on November 3, 2015. Although they are not contained as part of the transcript of those Pre-Trial Appearances, I have reviewed the hearings of the brief appearance made by the Crown Attorney and the two Defence Counsel on June 29, 2012, as well as Mr.

Bowser’s first two appearances for initial arraignment and his interim release which occurred on October 26 and 27, 2011, respectively. [ 22 ] Once all of the transcripts were available to the parties and the Court, on December 3, 2015, the Court then set dates for the filing of briefs and their supplementary oral submissions. After reviewing everyone’s availability and court time, the Court set February 2, 2016 as the date for the parties’ supplementary oral submissions on the Charter

section 11 (

b) application as well as the substantive trial issues. The Court also confirmed that the written briefs on the

section 11(

b) Charter application - Defence Counsel for Mr. Cameron without his brief by December 11, 2015 and Defence Counsel for Mr. Bowser by December 18, 2015. The Crown Attorney’s reply was to be filed with the Court on or before January 8, 2016. [ 23 ] As it turned out, Defence Counsel for Mr. Cameron filed her Charter brief on December 11, 2015 and Defence Counsel for Mr. Bowser filed his Charter brief and most of his supporting materials on December 22, 2015. Defence Counsel for Mr. Bowser also filed an affidavit in support of his

section 11 (

b) Charter application on January 12, 2016. The Crown Attorney filed his written brief in reply to the Defence Counsels’

section 11(

b) Charter Application with the Court on January 28, 2016. [ 24 ] On February 2 nd , 2016, Counsel made their supplementary oral submissions on their previously filed written briefs in relation to the

section 11 (

b) Charter application as well as in relation to the substantive trial issues. The Court indicated that judgment on both

issues would be reserved until April 14, 2016. The Positions of the Parties relating to Unreasonable Delay [25] It is the position of the Crown that the fact that Mr. Bowser and Mr. Cameron have been jointly charged in the Information is asignificant and overarching feature of the procedural history of this matter. The first time that both Mr. Bowser and Mr. Cameronappeared in court was on January 6, 2012. Defence Counsel for Mr. Bowser had only been retained three days prior to that appearanceand Defence Counsel for Mr.

Cameron indicated that she had not met her client and was not expected to see him before the end ofJanuary, 2012.

The Crown Attorney submits that the record reflects the fact that Defence Counsel were not in a position to set trial dates,due to developing disclosure requests, time to review that material and obtain instructions from clients, bail variations and otherdiscussions which the Crown Attorney attributes to “Inherent Time Requirements” which are a neutral factor in the assessment of delayfactors. [26] On September 13, 2012, when the accused made their election to have a trial in Provincial Court and not guilty pleas wereentered, Defence Counsel estimated that the trial might take a couple of days and then the Crown suggested that three days would berequired.

The Court set three days for trial from July 22-24, 2013, and all parties agreed without any further comments or objection. Apre-trial conference was held on January 21, 2013 and no one suggested that any additional days for trial should be added, with theresult, that the three-day trial was confirmed. It is the position of the Crown that, with the benefit of hindsight, the estimates of time wereclearly inadequate, taking into account the Defence trial strategy which included numerous evidentiary objections which could not havebeen foreseen by the Crown Attorney.

The Crown Attorney disputes the position of Defence Counsel that the Crown has the soleresponsibility for providing a fair estimate of the time to be allocated for trial, since that estimate is obviously impacted by the manner inwhich the Defence conducts its case. [27] The Crown Attorney also submits that the circumstantial nature of this case, the reconciliation of physical exhibits seized withphotographs of items allegedly stolen and items remaining at Mather’s Freight, details of the nature of various exhibits and items stolen,and review of video evidence from two locations as well as jointly charged accused persons all added to the complexity and length of thecase.

In addition, the Crown Attorney notes that the length of the trial was also affected by one day of trial being lost due to “confusion”on his part, but he submits that one of the Defence Counsel was also “confused” about that continuation date and that a half-day was alsolost due to the illness of one of the Defence Counsel as well as another full day being lost when one of the accused did not appear fortrial. [28] In the final analysis, it is the position of the Crown that the accused have not discharged their respective evidentiary burdens onthis application and therefore, the application should be dismissed.

In the alternative, the Crown Attorney submits that the accused havewaived in whole or in part their right to complain of delay by their agreement to adjournments or subsequent trial dates. [29] However, if the Court was not to resolve this application on either an express or implied waiver by Defence Counsel, it is theposition of the Crown that the Court must balance the individual and societal interests at play in this application.

In doing so anddetermining whether to order a stay of proceedings under section 24(1) of the Charter, the Court ought to take into account theseriousness of the charges in this case, the societal interests at play, the fact that the additional days should be attributed to “InherentTime Requirements”, the relative lack of prejudice to the accused and the fact that several Court of Appeal decisions have held that theremedy of a judicial stay is one that should only be granted “in rare and exceptional circumstances.” The Crown Attorney submits thatthis is not one of those rare and exceptional cases and the Charter application should be dismissed. [30] It is the position of Defence Counsel that they have met the initial burden of showing that the delay in this case has been so longas to warrant an inquiry into the reasons for the delay.

According to R. v. Kalanj, (SCC), [1989] 1 SCR 1594, the criticalperiod of time to be considered on this application is from the time when the information or charge was sworn until the completion of thetrial. In this case, the Information was sworn against Mr. Cameron on October 26, 2011, the first day of the trial was on July 22, 2013,the closing submissions on the

section 11(

b) Charter application and the substantive trial issues were made on February 2, 2016.Therefore, Defence Counsel submit that a total of 51 months and seven days will have elapsed from the swearing of the Information tothe anticipated conclusion of the trial, and Defence Counsel submit that this period of time is of sufficient length to raise an issue as to itsreasonableness. [31] Defence Counsel acknowledged that much of the delay in this case is the result of the trial taking significantly longer than theoriginal three days requested by the Crown Attorney.

The trial evidence and submissions have taken two years, seven months and tendays to be heard and while the trial issues may have been complex and may have unfolded in unexpected ways, it is the position of theDefence that the trial should not go so far outside the original anticipated trial time, especially in light of the fact that the accuseddeclined to call evidence. [32] Defence Counsel further submit that the timeframe of just over 20 months from the laying of the Information to the first trialdate, while being somewhat longer than the framework guidelines established in R. v.

Morin, (SCC), [1992] 1 SCR 771,was not unduly long given the complexity of the case and the original trial time estimate. However, it is the position of the Defence thatit is incumbent on the Crown Attorney to properly estimate the time required for the Crown to call its case and to be aware of theInherent Time Requirements within the case.

Therefore, the original time estimates provided by the Crown Attorney should be accurate,provided that the Defence does not call evidence and assuming that no admissions are made. [33] With respect to the waiver of time periods, Defence Counsel note that the requirements of a waiver are very stringent and thatfor an accused to waive his or her rights under

section 11(b), such waiver must be clear and unequivocal. Defence Counsel maintain that,while there was some delay in being retained by their clients in the first few months after the Information was sworn, all of thesubsequent adjournment requests were for disclosure and for dates to complete the trial evidence. Defence Counsel acknowledged thatthe pursuit of the Charter violation did result in a further delay of two months between December 3, 2015 and February 2, 2016, whichwould likely be considered as a waiver by them of that time period according to the R. v. Askov, (SCC), [1990] 2 SCR1199; 1990 Carswell Ont 111, test.

[ 34 ] It is the position of the Defence Counsel that, when the Court examines the reasons for the delay, the “Inherent Time Requirements” for a case will depend upon its complexity.

Here, the case had numerous exhibits which would not necessarily make the case overly complex, however, they do acknowledge that that there was a complexity to the case, but it was unnecessary for the trial to take such a significant amount of time. [ 35 ] With respect to the factor relating to the actions of the accused, it is the position of the Defence that the accused were diligent in the retention of counsel, the pursuit of disclosure and there was no fault on the part of the accused that the adjournments were granted due to the Crown’s case taking such a significant amount of time.

While Defence Counsel acknowledged that there were, on occasion, dates offered for the continuation of the trial when they were unavailable, once the delay became more apparent, Defence Counsel made efforts to make themselves available and pressed the Crown to use all available court time for the hearing of evidence. [ 36 ] Defence Counsel submit that the actions or the omissions of the Crown have caused an unreasonable delay in the proceedings. Initially, Defence Counsel submit that there was a delay in the receiving and forwarding of disclosure to them.

More importantly, it is the position of the Defence that the main reason for the delay in this case was the inappropriate estimate of time requested by the Crown for trial. Defence Counsel maintain that the Crown Attorney is in the best position to anticipate trial time, to be fully aware of the nature of its case and to be certain that enough time has been allotted for trial.

Defence Counsel also point to the delays during the trial caused by the Crown, such as needing additional time to set up exhibits and going through photographs to eliminate commentary and matching exhibits with photographs as well, some earlier dates which were proposed by the Court for trial continuation, were not taken due to the unavailability of the Crown Attorney.

Finally, Defence Counsel submit that the Crown Attorney’s confusion over a trial continuation date (February 13, 2015) resulted in the loss of a day and that the Crown Attorney’s desire to provide written closing statements also contributed to the overall delay in the completion of the case. The Framework for

section 11(

b) Charter Analysis [ 37 ] The relevant Charter provisions in determining an application where a person alleges that he or she has not been tried within a reasonable time are found in sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms (the “ Charter ) which reads as follows:

Section 11(b) - “Any person charged with an offence has the right to be tried within a reasonable time.” Section 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.” [ 38 ] The framework for analyzing an alleged breach of the right to be tried within a reasonable time pursuant to

section 11(

b) of the Charter , was initially formulated by the Supreme Court of Canada in Askov , supra and then more fully developed in Morin , supra with further clarifications added by the Supreme Court of Canada in R. v. Godin , 2009 SCC 26 . [ 39 ] The Supreme Court of Canada noted in Askov , supra [in 1990 Carswell Ont at paras. 75-77] and reiterated in Morin , supra , at paras. 26 to 30 , that

section 11(

b) of the Charter focuses upon the individual interest of liberty and security of the person, by taking into account the fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty and that they should not be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The individual rights which the

section seeks to protect are: (1) the right to security of the person; (2) the right to liberty; and (3) the right to a fair trial. In addition, there is also a societal interest in ensuring that those who transgress the law are brought to trial and dealt with according to law, but at the same time, those individuals must be treated fairly and justly. [ 40 ] As the Supreme Court of Canada explained in Morin , supra , at paras 26-30 , the right to security of the person protected in

section 11 (

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.

The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions, while the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [ 41 ] At the same time, a secondary societal interest parallels the interest of the accused, as society as a whole has an interest in seeing that those accused of crimes are treated humanely and fairly and that trials held promptly, enjoy the confidence of the public.

However, the Court also observed that, in some cases, the accused has no interest in an early trial and society’s interest will not parallel that of the accused. [ 42 ] The Supreme Court of Canada also noted in Morin , supra at para. 30 , that there are times when a societal interest is by its very nature adverse to the interests of the accused.

The majority judgment in Morin , supra written by Sopinka J. commented on this theme, which was initially observed by Cory J. in Askov , supra when he referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (see pp.1219-20 [SCR]). Sopinka J. added in Morin , supra , also at para. 30 : . . . as the seriousness of the offence increases so does the societal demand that the accused be brought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [ 43 ] In Morin , supra , at para. 31 , Sopinka J. stated that the general approach to a determination as to whether the right to a trial within a reasonable time has been denied, is not by the application of the mathematical or administrative formula, but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. The Supreme Court of Canada also noted, at para. 31, that “it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?”

[44] Having established the individual and societal interests at issue in the analysis of a

section 11(

b) Charter application in Morin,supra, Sopinka J. stated that the Court had now accepted that the factors to be considered in analyzing how long is too long, are asfollows: a. the length of the delay; b. waiver of time periods; c. the reasons for the delay, including i.

Inherent Time Requirements of the case, ii. actions of the accused, iii. actions of the Crown, iv. limits on institutional resources, and v. other reasons for delay; and d. prejudice to the accused. [45] In Morin, supra, at para. 32, Justice Sopinka added that the judicial process of reviewing those factors is referred to as“balancing” which requires an examination of the length of the delay and its evaluation in light of the other factors. A judicialdetermination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of theinterest which

section 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the timeelapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1 SCR 1594. The length ofthis period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period isunreasonable having regard to the interests

section 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [46] More recently, in R. v Godin, 2009 SCC 26 at para. 18, Justice Cromwell, writing for the Supreme Court of Canada reaffirmedthe Morin, supra framework and factors to be considered in a

section 11(

b) Charter application: [18] The legal framework for the appeal was set out by the Court in Morin, at pages 786-89. Whether delay has been unreasonable isassessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account thereasons for the delay, the prejudice to the accused, and the interests that

section 11(

b) seeks to protect. This often and inevitably leads tominute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important,however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

As Sopinka J. noted in Morin at p. 787,“[t]he general approach… is not by the application of the mathematical or administrative formula but rather by a judicial determinationbalancing the interests which [section 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwisethe cause of the delay. [47] I find that these comments by Justice Cromwell relating to the framework for analyzing a

section 11(

b) Charter application inGodin, supra, and in particular, to “not to lose sight of the forest for the trees” reminds us to keep in mind that the facts of the case arethe context in which we analyze the guidelines set out in Morin, supra.

In Godin, supra Justice Cromwell noted at para. 4 that threecritical elements contributed to the delays in the case – a long delay in obtaining and then disclosing potentially important forensicevidence; a failure to acknowledge Defence Counsel’s effort to obtain earlier dates and the need to adjourn a long-delayed preliminaryinquiry because there was not sufficient time for it to proceed on the scheduled date, with the result that a one-day preliminary inquirywas not completed until 21 months after the charges had been laid.

Although the Morin, supra guidelines were “substantially exceeded”in the case, the critical issues were contextual factors, as Cromwell J. pointed out, in Godin, supra, at para. 5: That, on its own, does not make the delay unreasonable.

The difficulty in this case, in my view, arises from the considerable delaycoupled with three additional facts: (1) the case is a straightforward one with few complexities and requiring very modest amounts ofcourt time; (2) virtually all of the delay is attributable to the Crown and is unexplained, let alone justified; and (3) defence counselattempted, unsuccessfully, to move the case ahead faster. [48] Sopinka J. had stated in Morin, supra, at para. 51, that the guideline which had been established by the Court in Askov, suprawas just that, simply a guideline and not a limitation period.

A guideline is not intended to be applied in a purely mechanical fashion. Itmust lend itself and yield to other factors, since the Court acknowledged that the guideline is not the result of any precise legal orscientific formula, but rather, the result of the exercise of judicial discretion.

Moreover, Justice Sopinka also stated in Morin, supra, atpara. 53, that “the application of a guideline will also be influenced by the presence or absence of prejudice”. [49] In Morin, supra, at para. 36, Sopinka J. observed that an inquiry into unreasonable delay is triggered by an application undersection 24(1) of the Charter and that the applicant has the legal burden of establishing a Charter violation. It was noted that the inquiry,which can be complex, should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness.

If thelength of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able toraise the issue of reasonableness of the period by reference to other factors such as prejudice. [50] In R. v. Tran, 2012 ONCA 18 at para. 21, the Ontario Court of Appeal referred to those comments of Sopinka J. as the“screening mechanism” to determine whether an inquiry into the reasonableness of the delay is warranted.

The Court of Appeal notedthat if the overall length of the delay, when considered in the context of all of the circumstances (such as whether the accused is incustody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should bededucted from the overall length of the delay before considering the reasons for any remaining delay.

[ 51 ] In this case, there is no real dispute between the parties as to the relevant analytical framework or to the applicable legal principles and guidelines. However, the parties do not agree on the particular application of those principles to the relevant facts of this case. 1. The Overall Length of the Delay [ 52 ] This factor, as I indicated previously, is simply a “screening mechanism” to determine whether an inquiry into the reasonableness of the overall delay is warranted.

In essence, this first factor is simply a threshold determination of the “excessiveness of the delay” and it is only necessary to go further and consider the other 3 factors in the legal framework if the overall period of delay “is of sufficient length to raise an issue as to its reasonableness.” See R. v. Askov , supra , at pp. 1209-10 [SCR]. [ 53 ] The “replacement” Information was sworn on October 28, 2011. The closing submissions of counsel on the

section 11(

b) Charter application and the substantive trial issues were made on February 2, 2016. As a result, this represents a period of approximately 51 months between the time that Mr. Bowser and Mr. Cameron were charged and the conclusion of the trial. In addition, counsel have noted that it was approximately 20 months from the time that the 2 co-accused were charged with the offences before the trial commenced in late July, 2013.

In total, trial evidence was heard on or scheduled to be heard on a total of 13 days over a period of 24 months, with the trial evidence being completed in late July, 2015. [ 54 ] There is no real dispute between the parties that the passage of time in this case is sufficient to call for further examination. 2. Waiver of Time Periods [ 55 ] In the legal framework established by the Supreme Court of Canada, it is expected that the trial judge will examine the chronology of events on a

section 11(

b) Charter application and that a waiver of time periods can be either express or implied, but it “must be clear and unequivocal” and made with “full knowledge of the rights the procedure was enacted to protect.” When counsel expressly state, that

section 11 (

b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where “a choice has been made between available options” and “the actions of the accused amounted to an agreement to the delay” rather than “mere acquiescence in the inevitable.” Once a waiver has been found, that period of delay is simply removed from the

section 11 (

b) analysis and the overall delay is shortened. See R. v. Askov , supra , at page 1247 [SCR] and R. v. Morin , supra , at para. 38 . 3. The Reasons for the Delay [ 56 ] The Supreme Court of Canada has repeatedly stated that the analysis of this factor does not involve findings of fault or attributing blame to one side or the other, as there can be good or necessary reasons for delay. This factor simply requires the Court to conduct an objective analysis of each period of delay in order to determine its cause.

As mentioned previously, the 5 traditional causes are: (1) the Inherent Time Requirements of the case; (2) any actions of the Defence; (3) any actions of the Crown; (4) limitations on institutional resources; and (5) other miscellaneous causes, such as judicial delays. [ 57 ] Given the analysis that the Supreme Court of Canada expects the trial judge to conduct with respect to each one of those potential causes of delay, they have recognized that the Court must do a careful analysis of the transcripts of each date where the proceedings were held.

Having objectively determined the cause of each period of delay, based upon the transcripts and any other relevant evidence, this factor then determines whether delays are attributed to the Crown, attributed to the Defence or are said to be “neutral.” [ 58 ] The Supreme Court of Canada has also acknowledged in their decisions that some delay is inevitable as courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare.

Over and above those Inherent Time Requirements of the case, time may be required to accommodate the busy schedules of the prosecution or the defence. However, neither side can rely on their own delay to support their respective positions. See Morin , supra , at para. 40 .

a) Inherent Time Requirements [ 59 ] As stated in Morin , supra , at para. 41 , all offences have certain Inherent Time Requirements which inevitably lead to delay. The complexity of the trial is one requirement which is often mentioned, and assuming that all other factors being equal, the more complicated a case, the longer it will take for counsel to prepare for trial and for the trial to be conducted once it begins.

Each case will bring its own set of facts to be evaluated, but account must also be taken of the fact that counsel for the Prosecution and the Defence cannot be expected to devote their time exclusively to one case. [ 60 ] In addition, the Supreme Court of Canada also noted in Morin , supra at para. 42 , that there are other Inherent Time Requirements which are common to almost all cases such as “intake requirements” which consist of retention of counsel, bail hearings, police and administration paperwork, disclosure, etc.

However, as the number and complexity of activities which are necessary increase, so does the amount of delay that is reasonable. For that reason, it is important to keep in mind that the Supreme Court of Canada in Morin , supra , at para. 42 , specifically declined to set an administrative guideline for such an “intake period.” [ 61 ] Another inherent delay which must be taken into account is whether the case must proceed through a preliminary inquiry. Clearly, a longer time must be allowed for cases that must proceed to a “two-stage” trial process than for cases which do not require a preliminary hearing.

Obviously, this consideration is not relevant in this case, as the accused persons elected trial in the Provincial Court. [ 62 ] In conducting an analysis as to whether a trial has taken an unreasonable time, it bears repeating that the Supreme Court of Canada has only created an “administrative guideline” of eight to ten months from the time the parties are ready to proceed to trial to the

start of a trial in Provincial Courts, not a limitation period. It must also be kept in mind that the Supreme Court of Canada did not establish an “administrative guideline” for the “intake period” and added that the length of time needed for that period and other Inherent Time Requirements will be influenced by the local practices and conditions in a jurisdiction. [ 63 ] In the Dartmouth Provincial Court, where several trials are scheduled during the day, finding a full day for one trial is a challenge, especially for accused persons who are not in pre-trial custody.

As one might reasonably expect, the Court gives priority to its earliest trial dates to those accused who are remanded in pre-trial custody and accordingly, the Inherent Time Requirements for a full day of court or more of an accused person or persons who are not in pre-trial custody is often several months.

b) Actions of the Accused [ 64 ] The analysis of this factor of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. The Supreme Court of Canada noted in Morin , supra , at para. 44 that all actions which were voluntarily taken by the accused which may have caused delay, are to be considered. Actions such as change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. are to be considered.

However, the Supreme Court of Canada made it clear that it was not advocating that an accused person sacrifice preliminary procedures or their trial strategy, but the Court simply made the point to state that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

c) Actions of the Crown [ 65 ] As with the conduct of the accused, the Supreme Court of Canada pointed out in Morin , supra , at para. 46 that this factor does not serve to blame the Crown for certain portions of the delay.

This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated, for example, adjournments requested by the Crown, failure to disclose information or a delay in disclosure of relevant information, change in venue motions, etc. [ 66 ] In this case, the Defence does not seriously take issue with respect to the actions of the Crown with respect to any failure to provide disclosure or to provide timely disclosure of materials.

Defence Counsel do, however, take issue with the original estimates of the amount of time required for trial, which they submit was the sole responsibility of the Crown Attorney when the Court established the three days for trial in July, 2013, after the accused persons made their elections and entered not guilty pleas in September, 2012.

The Defence also submits that the manner in which the Crown Attorney prosecuted this case, utilizing a combination of photographs and physical exhibits and reviewing that evidence with several witnesses added to the length and complexity of the case and resulted in a significant amount of additional time being required, over and above the original estimated time, to complete the trial evidence. [ 67 ] For his part, the Crown Attorney submits that the “numerous and frequent” objections made by Defence Counsel during the trial had a profound effect on the length and complexity of a circumstantial case with multiple accused.

d) Limits on Institutional Resources [ 68 ] Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of

section 11 (

b) at the Charter .

As Justice Sopinka said in Morin , supra , at para. 47 “this is the period that starts to run when the parties are ready for trial, but the system cannot accommodate them.” He pointed out that the Court would no longer tolerate delay based upon the plea by government of inadequate resources, but also added that this period of time may be referred to as an “administrative guideline” which is neither a limitation period, nor a fixed ceiling on delay. [ 69 ] In assessing this factor, the Supreme Court of Canada observed that a trial court cannot find that a particular period of delay has been caused by “systemic congestion” until it is first established when counsel were ready to try the case.

However, when the case is actually ready for trial and a judge, courtroom or essential court staff are not available so that the case cannot go forward, that delay is attributed to “institutional” or “systemic delay.” [ 70 ] It should be noted that although this “institutional delay” is not the fault of the Crown, any delay that is attributed to this factor, weighs against the Crown in the overall assessment of whether there has been an unreasonable delay in the completion of the trial. [ 71 ] In Askovm supra , Sopinka J. had pointed out that the Court was dealing with a delay of approximately two years subsequent to committal for trial and that all of that delay was “institutional or systemic delay.” In that case, the Court suggested a period of eight to ten months as a guideline for institutional delay for Provincial Courts.

In Morin , supra , at para. 57 , Sopinka J. acknowledged that the suggested periods of time were for the guidance of trial courts generally and that they would require adjustments by trial courts in various regions of the country to take into account local conditions and changing circumstances. [ 72 ] As I indicated previously, the Dartmouth Provincial Court is one of the busiest courts in the Province of Nova Scotia and not surprisingly, it has one of the longest court backlogs in the Province.

Unlike some of the other judicial centers in the Province of Nova Scotia, the Dartmouth Provincial Court had, for a number of years, been setting trial dates of between eight to 12 months later for trials of one day or more, for an accused person who was not detained in pre-trial custody. [ 73 ] While that period of “institutional delay” is slightly above the “administrative guidelines” which were established by the Supreme Court of Canada in Askov supra , it is important to remember and take into account that the Court established those guidelines at a time when the Charter had only been in force for a few years.

In my view, the Supreme Court of Canada had envisioned the impact that an overly broad

section 11(

b) of the Charter decision would have on Canada’s legal environment and for that reason, they added the proviso that the “guidelines” were not to be interpreted as limitation periods and that trial courts should take into account “local conditions and changing circumstances.” [ 74 ] In this case, the Defence submits that the first period of institutional delay was from September, 2012 when the accused elected to be tried in the Provincial Court and pled not guilty to the start of the trial in late July, 2013. Therefore, they submit that the first period

of institutional delay was approximately 10 months, which both Defence Counsel have acknowledged was within the administrative “guideline” established by the Supreme Court of Canada in Askov and reiterated in their Morin, supra decision. Taking into account what the Supreme Court of Canada referred to as “local conditions and changing circumstances,” I find that the setting of the initial trial dates in July 2013, was well within an administrative “guideline” of 8 to 12 months for this judicial district, even if I was to consider that entire period of time to be attributed to institutional delay. [ 75 ] As a result, the real issue to be determined in this case in relation to the applicants’

section 11 (

b) be Charter application is whether a trial that was started within that “administrative guideline,” but took longer to complete than was originally estimated by the parties when the trial dates were established, which necessitated several additional trial dates to complete the trial, then contravened the applicants’

section 11(

b) Charter rights to be tried within a reasonable time. [ 76 ] In my view, in examining the issue of the limits of “institutional resources,” it is important to keep in mind that the Supreme Court has said that this is not a simple mathematical formula and as a reminder of that point, the Court stated that “this period only starts to run when the parties are ready for trial and the Court cannot accommodate them.” But, of course, when one looks at that statement, it is not only an issue of trial readiness and the next court date, because that time period must also take into account the fact that counsel also have busy schedules and the reality is that they are not available to conduct a trial, especially one of some considerable length and complexity, the next day.

The reality is that very few counsel - Crown or Defence - would be ready for a trial of this length and complexity for some time into the future given their other caseload which obviously involves doing “intake work”, their preparation and court appearances for other trials or sentencing hearings and decisions as well as other personal and professional commitments, such as vacation, continuing education, etc.

e) Other Reasons for Delay [ 77 ] Essentially, the Supreme Court of Canada wished to ensure that trial judges took into account all reasons for the delay in the trial, which may have been due to factors other than the ones previously enumerated by the Court. One possible factor mentioned in the Morin , supra case was delay that was due to the actions of the trial judges.

There, the Supreme Court of Canada noted that actions of the trial judge, although they might not be characterized as strictly institutional delays, they are, nonetheless, delays which cannot be relied upon by the Crown to justify the period of time under consideration. 4. Prejudice to the Accused: [ 78 ] The Supreme Court of Canada has clearly stated in several decisions that the purpose of

section 11(

b) of the Charter is to protect an individual from impairment of their right to liberty, security of the person and the ability to make full answer and defence, resulting from unreasonable delay in bringing criminal trials to conclusion. The rights protected by

section 11(

b) of the Charter are not restricted to only those who can demonstrate that the desire a speedy resolution of the case by asserting the right to a trial in reasonable time.

The Supreme Court of Canada has stated that prejudice to the accused can be inferred from “prolonged delay” and that the longer the delay, the more likely that such an inference will be drawn: see Morin , supra , at para. 61 . [ 79 ] The Supreme Court of Canada has also made it clear that “it is the duty of the Crown to bring the accused to trial,” but it was also noted in Morin , supra , at para. 62 , that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused.

On this point, the Court noted that Cory J. had stated in Askov , supra , at page 1222 [SCR], that “the

section 11 (

b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused.” Therefore, the Court in Morin also observed, supra , at para. 62, that: The purpose of

section 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with the desire for a timely trial is something that the Court must consider. … Nonetheless, in taking into account in action by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right.

In action may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay. [ 80 ] The Supreme Court of Canada also noted that apart from inferred prejudice, either party may rely on evidence to show prejudice or to dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as result of pretrial incarceration or restricted bail conditions.

Prejudice to an accused’s security interest can be shown by evidence of the ongoing stress or damage to reputation as a result to overlong exposure to the pending criminal accusation. In addition, the fact that the accused sought an early trial date will also be relevant as well as evidence that may be adduced to show that delay has prejudiced the accused’s ability to make full answer and defence. [ 81 ] It was also noted in Morin , supra that the prosecution may establish, by evidence, that the accused did not want an early trial and that the delay benefited, rather than prejudiced the accused.

Conduct of the accused falling short of waiver may be relied upon to negative prejudice. In addition, the degree of prejudice or its absence is also an important factor determining the length of institutional delay that will be tolerated and that the application of any guideline will be influenced by this factor. Balancing of Societal Interests: [ 82 ] Once the Court has assessed each of those 4 factors, the Court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown.

The Court should also arrive at some assessment as to the strength or weakness of the claim by the accused to prejudice. At that point, as Supreme Court of Canada stated in Morin , supra , at para. 32 , the trial courts must undertake the judicial process referred to as “balancing” which requires an examination of light of the delay and its evaluation in light of the 4 factors. A judicial determination is then made as to whether the period of delay is unreasonable. As the Supreme Court of Canada noted in Morin , supra , at para. 30 :

As the seriousness of the offence increases so does the societal demand that the accused brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [ 83 ] Therefore, once the analysis of the four factors which I have outlined above have been reviewed in detail, then the periods of delay which were waived by the Defence or are attributed to the Defence or are considered to be “intake requirements” or “Inherent Time Requirements” which are attributed to be “neutral” should be determined.

Those periods of time should be deducted from the total period of the overall delay, leaving only those periods of time that are characterized as delay which is attributed to the actions of the Crown or institutional delay which is also attributed to the Crown.

It is at that point, that the Court is then required to do the “balancing of societal interests,” which as the Court noted in Morin at para. 30 , “is by its very nature adverse to the interests of the accused,” because of the interests of society in law enforcement. [ 84 ] Once again, at the end of assessing the four factors, the Court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The Court should also arrive at some assessment as to the strength or weakness of the claim of prejudice. It is only unreasonable periods of delay, causing prejudice, which

section 11(

b) of the Charter protects. As I have indicated above, these factors must then be balanced against the societal interest in a trial on the merits. The Chronology of the Proceedings October 26, 2011 to January 6, 2012: [ 85 ] On October 26, 2011, Mr. Bowser was arrested and charged on an Information sworn that day with a break enter and theft contrary section 348(1)(

b) of the Code and possession of stolen property contrary to

section 355 (

a) of the Criminal Code . He was arraigned that day and released on a recognizance with a the surety subject to certain conditions including a house arrest condition, on October 27, 2011 and directed by the Court to return on January 6, 2012 for plea. [ 86 ] On October 28, 2011, a “replacement” Information was sworn which charged Mr. Cameron and Mr. Bowser jointly with having possession of stolen property of Mather’s Freight Management contrary to

section 355(

a) of the Code . Mr. Cameron was also charged individually with the theft of property not exceeding $5,000.00 of Mathers Freight Management contrary to

section 334(

b) of the Code . Mr. Bowser was charged individually with the break, enter and theft of property from a business located at 165 Burbridge Avenue, Dartmouth, Nova Scotia contrary to section 348(1)(

b) of the Code . [ 87 ] Mr. Cameron was arrested on October 28, 2011 and was released from custody on a recognizance with a surety subject to certain conditions including the curfew from 10 p.m. until 6 a.m. the following day, on November 1, 2011. He was ordered to return to court for plea on January 6, 2012. Mr. Cameron was assisted on November 1, 2011 by a lawyer who advised the Court that he was only retained for that day. [ 88 ] On November 7, 2011, Mr. Bowser appeared in court and his recognizance was varied and he was released on a recognizance with a new surety. [ 89 ] On November 25, 2011, with the consent of the Crown, clause (

e) in the recognizance of Mr. Bowser was varied. [ 90 ] It is clear from the record that this initial period of time following the arrest Mr. Bowser and Mr. Cameron on different dates, their release under terms of a recognizance on different dates and obviously, allowing some time for the accused to make arrangements to retain counsel, with a direction for both co-accused to come back to court at the same time on January 6, 2012 was what the Court in Morin referred to as the “intake requirements” which are considered part of the “Inherent Time Requirements” of a case.

As such, I find that this period of time is not to be attributed to either the Crown or the Defence, nor is it to be considered as part of the institutional delay in the overall calculation of the total period of time on the

section 11(

b) Charter application. Therefore, this period of two and a half months will be deducted from the total time that this matter has been before the Court as it is a neutral factor and, in fairness, delays caused by these “intake requirements” cannot be attributed to either the Crown by virtue of the Crown’s actions or Institutional delay due to the Court

schedule or, on the other hand, be attributed to actions of the Defence or a Defence waiver of that period of time. January 6, 2012 to March 8, 2012: [ 91 ] Mr. Bowser and Mr. Cameron made their first appearance in court together on the “replacement” Information on January 6, 2012. Since the original information sworn on October 26, 2011 had not been withdrawn, Mr. Bowser also appeared in court on that Information. [ 92 ] On January 6, 2012, Mr. Cameron appeared in court, in person, with his counsel, Ms.

Patricia Jones, although she advised the Court that her “appearance just be noted for today only” because she had not actually met with Mr. Cameron at that point, she had only made a preliminary review of some of the information that had been disclosed and that she expected further disclosure by way of video recordings, photographs and audio statements. Furthermore, Defence Counsel also advised the Court that she did not anticipate that she would be able to arrange a meeting with Mr. Cameron before the end of January, 2012 to go over the file material and confirm her representation of him.

The Crown Attorney who was handling the file for that day only, advised the Court that there was still disclosure from the police, and he suggested a date in March. Ms. Jones agreed to have election and plea put over to March 8, 2012. [ 93 ] In addition, on January 6, 2012, Mr. Thibault confirmed that he would be solicitor of record for Mr. Bowser also agreed to put the matter over to March 8, 2012. [ 94 ] On February 16, 2012, Mr.

Bowser appeared with duty counsel to request a variation in the terms of his recognizance and with the Crown Attorney’s consent, the Court ordered a further exception to the house arrest condition which allowed him to apply for employment at certain times in the presence of his surety.

[ 95 ] For the purpose of the analysis of this two month period of time, I find that it should not be factored into the overall calculation of the delay in accordance with the criteria established by the Supreme Court of Canada as I find that these two months are to be attributed as part of the “Intake Requirements” or “Inherent Time Requirements” of the case.

Therefore, this period of two months will be deducted from the total time that this matter has been before the Court as it is a neutral factor and, in fairness, delays caused by these “intake requirements” cannot be attributed to either the actions of the Crown or the institutional delay of the Court, which would be attributed to the Crown or to the actions of the Defence or a Defence waiver of that period of time. March 8, 2012 to April 3, 2012 [ 96 ] On March 8, 2012, Mr. Bowser was present in court with his Defence Counsel and Mr. Cameron was present in court, although Ms.

Jones was not able to attend court on that date. The Court noted that Ms. Jones had indicated on the previous appearance that she was Mr. Cameron’s counsel “for today only” and when Mr. Cameron was asked if Ms. Jones was representing him, his answer was “I assume so” and that they were waiting for further disclosure from the Crown. At that point, the Crown Attorney indicated that further disclosure would be forwarded to Defence Counsel and he suggested that election and plea go over to another date. Mr. Thibault advised the Court that he had spoken to Ms.

Jones the previous day and that he was not sure whether she would be available in early April. However, one of the colleagues of Ms. Jones at the Dartmouth Legal Aid office was present in the Court and she confirmed that Ms. Jones was working during the week during the first week of April, but would be away from the office for the rest of the month. The other Legal Aid lawyer also undertook to advise Ms. Jones of the next court date for Mr. Cameron. [ 97 ] The Court then scheduled April 3, 2012 for election and plea and for Ms. Jones to confirm that she would be solicitor of record for Mr. Cameron.

The Court also noted that if the scheduled date turned out to be inconvenient to Ms. Jones, then, she could either rearrange the date or have another member of her office appear on her behalf. [ 98 ] Once the April 3, 2012 date was established for election and plea, with the consent of the Crown Attorney, the Court ordered an amendment to the house arrest condition in Mr. Bowser’s recognizance to allow him to work at and travel to and from certain named business locations. [ 99 ] On March 19, 2012, Mr.

Bowser had made a further application to vary the terms of his recognizance, however, that application was abandoned on that date. [ 100 ] On March 27, 2012, Mr. Bowser’s recognizance was varied with the addition of certain locations where he would be working as part of the exception to the house arrest condition. [ 101 ] Given the fact that Defence Counsel for Mr. Cameron had not yet confirmed whether she was going to be the solicitor of record, she was required to be in another court that day and therefore could not attend with Mr.

Cameron on April 3, 2012 and given the fact that the Crown Attorney had also indicated that further disclosure would soon be forwarded to all Defence Counsel, I find that this one month period of time from March 8 to April 3, 2012, is also to be attributed to the “Intake” or “Inherent Time Requirements” of the case. As such, I find that this one month period is to be regarded as “neutral” in the assessment of the length of delay and not to be attributed to either the Crown or the Defence.

April 3, 2012 to June 29, 2012: [ 102 ] On April 3, 2012, both accused were present with their Counsel, however, the assigned Crown Attorney was not available. Defence Counsel indicated that they had still not received disclosure of items that had been requested by them on February 2, 2012. The Court took a brief recess to allow the Crown Attorney to contact his colleague.

As a result, Defence Counsel advised the Court that they would like to put the matter over to June 29, 2012, rather than one of the Court’s intake days in May 2012, due to the unavailability of one of the Defence Counsel. [ 103 ] The Court noted that since the assigned Crown Attorney was not present, it would be difficult to tell when all disclosure would be provided. Since Defence Counsel for Mr.

Cameron was not available in April 2012 and, therefore, she would have to meet with her client in May to review that disclosure information, she suggested that the next court date for election and plea go over to June 29, 2012. Defence Counsel for Mr. Bowser indicated that the June 29, 2012 date “would be fine for me, as well.” [ 104 ] On April 13, 2012, Mr. Bowser’s recognizance was varied with the consent of the Crown Attorney. [ 105 ] On April 24, 2012, Mr.

Bowser’s application to vary his recognizance was dismissed, as he did not attend court on that date to advance his application. [ 106 ] On May 4, 2012, Mr. Bowser’s application to vary his recognizance was dismissed, as he did not attend court on that date to advance his application. [ 107 ] On May 29, 2012, with the consent of the Crown Attorney, one of the house arrest exceptions contained in clause (

e) of Mr. Bowser’s recognizance was varied. [ 108 ] On June 5, 2012, with the consent of the Crown Attorney, the Court added a further exception to the house arrest condition contained in the recognizance by allowing Mr. Bowser to attend Nova Scotia Safety Association course and to travel to and from that course by a direct route. [ 109 ] On June 13, 2012, with the consent of the Crown Attorney, Mr.

Bowser’s recognizance was varied by the Court, although the specific nature of the variation was not noted on the Court Appearance Record on the back of the Information. [ 110 ] Given the fact that the Defence’s request for additional disclosure had been outstanding since February, 2012 and the Court could have scheduled this matter in May, 2012, but the next court date was scheduled at the Defence request for June 29, 2012, I find that it

would be appropriate to split this period of approximately three months, with the first one and a half months of that period of time being attributed to the Crown for the delay in disclosure and the latter month and a half months of that period of time being attributed to the Defence. [ 111 ] Furthermore, I want to point out that in attributing 1 ½ months of this three-month period (April 3, 2012 to June 29, 2012) to the Crown for the delay in the providing the disclosure which had been requested in February, 2012, with the last 1 ½ months during that period of time being attributed to the Defence, it is for the purpose of the

section 11(

b) Charter analysis to establish whether a period of time is attributed to the Crown, the Defence or is considered a “neutral factor” without attributing any “blame” to one side or the other. Given the comments made by Defence Counsel on April 3, 2012, I find them to have been an express waiver to have the matter return to court for election and plea on a later date then could have been scheduled. Put another way, the additional 1 ½ months to bring the matter back to court was clearly provided by the Court to accommodate the

schedule of the Defence Counsel, who had requested that additional time. June 29, 2012 to July 30, 2012: [ 112 ] Unfortunately, no transcript was prepared for this brief appearance on June 29, 2012, however, I have listened to the Court recording of that brief appearance. On that date, the assigned Crown Attorney, both Defence Counsel and both accused were present and the Crown Attorney noted that there had been a number of adjournments to facilitate disclosure requests.

The Crown Attorney stated that he had spoken with both Defence Counsel as there was a difference of opinion between them - the Crown Attorney believed that he had provided all of the disclosure requested, but Defence Counsel stated that they did not have that information. [ 113 ] As a result, the Crown Attorney advised the Court that he would “sort out” what had been disclosed and to determine if anything was still outstanding, and with that, Defence Counsel proposed returning to the Court on July 30, 2012.

The Crown Attorney advised the Court that he would be “pushing for the accused to make an election on that date, subject to what happens in the interim.” [ 114 ] On July 16, 2012, Mr. Bowser’s recognizance was varied, in part, with the consent of the Crown Attorney and the balance of his application was adjourned to July 18, 2012 for a further variation. [ 115 ] On July 18, 2012, with the consent of the Crown Attorney, Mr. Bowser’s recognizance was varied and a new recognizance was ordered, now with a new named surety, Ms. Latisha Bowser, with the signature amount of $5,000.00 for Mr.

Bowser and the surety signing for the amount, justified by an affidavit in respect to her personal property. [ 116 ] Given the fact that the Crown believed that full disclosure had been made as requested by Defence Counsel in February, 2012, but the Defence Counsel were of the view that they had not received all of the disclosure that they had requested, I find that it would be appropriate to attribute this further period of time as an “intake or inherent” time requirement which is “neutral” and not to be attributed to either the Crown or the Defence.

This one month period of time should therefore be deducted from the total period of time that the matter has been before the Court. July 30, 2012 to September 13, 2012: [ 117 ] On July 30, 2012, the assigned Crown Attorney, both Defence Counsel and their clients were present in court.

This appearance was relatively brief, with the Crown Attorney advising the Court that the Defence had asked to put the proposed date for their election and plea over to September 13, 2012 so that they could continue to “sort out some disclosure issues.” The Crown Attorney noted that many of the items which Defence Counsel still believed to be outstanding had, in fact, been disclosed by the Crown, but disclosure issues would be sorted out by the next court date. Both Defence Counsel advised the Court that the next day was “agreeable” to them. [ 118 ] On August 15, 2012, Mr.

Bowser’s application to vary his recognizance did not proceed, as the Crown Attorney who was in court that day, was not the Special Prosecutions Crown Attorney who had been handling this case, and that Crown Attorney did not consent to the Court’s jurisdiction to hear the application. [ 119 ] On September 12, 2012, Mr.

Bowser’s application to vary his recognizance did not proceed, as the Crown Attorney who was in court that day, was not the Special Prosecutions Crown Attorney who had been handling this case, and that Crown Attorney did not consent to the Court’s jurisdiction to hear the application. [ 120 ] Given the fact that the Crown Attorney advised the Court that, in his view, full disclosure had been made to the Defence Counsel, but they were not sure whether or not they actually had received the requested information from the Crown, I find that, in fairness, this further 1 ½ month period of delay should be assessed as “intake or Inherent Time Requirements,” which is a “neutral” factor, not attributed to either the Crown or the Defence.

Therefore, this 1 ½ period of time should be deducted from the total period of time that the matter has been before the Court. September 13, 2012 to July 22, 2013 - Election and Plea Entered: [ 121 ] On September 13, 2012, the assigned Crown Attorney, both Defence Counsel and Mr. Bowser were present in court. Mr. Cameron was not present. Defence Counsel elected Provincial Court and entered not guilty pleas on behalf of their clients and those pleas were noted on the “replacement” Information which was sworn on October 28, 2011.

Then, the Crown withdrew the original Information which only contained charges against Mr. Bowser. [ 122 ] Following the entry of Mr. Cameron’s not guilty plea, his Defence Counsel advised the Court as follows: I can tell Your Honour that there still may be some possibility of resolution, but given the age of the matter and the fact that we’re likely going to require a couple of days and, therefore, (we) are looking at some time well into 2013, that is why are looking to set trial dates now.

[ 123 ] Defence Counsel for Mr. Bowser stated: “I will follow my friend’s comments on that.” [ 124 ] Following the remark by the Defence Counsel, the Crown Attorney stated: I fully concur and I appreciate their position. I, what I would ask you to do, Your Honour, for the purpose of scheduling this, I think we would need three days of trial. [ 125 ] The Court advised counsel that the first block of three consecutive days for trial would be in mid-to-late July, 2013 and the Court offered trial dates from July 22 to July 24, 2013.

Both Defence Counsel immediately advised the Court “that’s fine” as did the Crown Attorney. [ 126 ] In setting those dates for trial, I find that it is significant to note that neither side had asked if any earlier dates were available, which I find to be largely based upon their earlier comments and their understanding of the busy caseload in the Dartmouth Provincial Court that a lengthy trial of 3 days or more would, as Defence Counsel had aptly and in my view, also realistically anticipated, be “well into 2013.” Although Defence Counsel had stated “given the age of the matter and the fact that were likely going to require a couple of days,” as the reason “why we’re looking to set the trial dates now,” there was certainly no discussion that the election and plea would be adjourned to another day. [ 127 ] Since the trial was over one day in duration and that there were discussions between Counsel about a possible resolution, the Court directed that a pre-trial conference be scheduled within the next 3 to 4 months.

The Court agreed with the suggestion of Defence Counsel to

schedule a conference in January, 2013. [ 128 ] Once the trial dates had been set and the pre-trial conference was scheduled for January 21, 2013, the Court stated that 3 days for trial was “a significant block of time” and then provided Mr. Cameron and Mr. Bowser with an overview of the purpose of the pre-trial conference, as follows: The Court : It’s to discuss the legal issues and update whether the three days is still required - is it one day, two days, if there’s some agreements on issues that can shorten the trial length. The Court is always concerned about efficient use of the time.

So on any matter over a half day, I always do set a pre-trial meeting with the lawyers to help them come back to the file, you know, a few months from now, meet with their clients, and let me know if there’s been any developments that I can utilize the time one way or the other. Joseph Bowser : okay. The Court : Or if we need more time, because sometimes it goes that way, too. Okay? So you do not have to be at the January 21 st date. We’ve set the trial date… . [ 129 ] On January 21, 2013, a pre-trial conference was held in chambers with the assigned Crown Attorney and both Defence Counsel.

Since the pre-trial conference was held in chambers, no transcript of the discussions is available, nor did the Court prepare a

summary of the discussions which was forwarded to the trial counsel. However, based upon a review of my notes of that pre-trial meeting, all counsel confirmed that they were all available on the 3 days set for trial [July 22-24, 2013] and the Crown Attorney advised that he intended to call between 10-15 witnesses and he believed that they would all be available on the trial dates. The Crown Attorney advised that all disclosure had been made and, as a result, the trial dates were confirmed.

Neither the Crown Attorney nor the Defence Counsel advised the Court that any additional trial days would be needed. [ 130 ] During the pre-trial conference, the Crown Attorney also mentioned that he would be introducing a number of physical exhibits during the trial. The Court asked whether the continuit

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