R. v. Irwin, 2018 BCPC 94

Citation: R. v. Irwin 2018 BCPC 94 Date: 20180419 File No: 243262-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CHRISTOPHER IRWIN RULING ON CHARTER VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: M. Myhre Counsel for the Defendant: V. Williams Place of Hearing: Vancouver , B.C. Dates of Hearing: Sept. 25, 28, 29, Oct. 2, 3, 4, 5, Dec. 5, 2017; Jan. 26, Mar. 28, 2018 Date of Judgment: April 19, 2018 I. INTRODUCTION

I. INTRODUCTION [1] On New Year’s Eve in December of 2015, Huanghe Guo (the “complainant”) was at a nightclub with his girlfriend.

Shortlyafter their arrival at the nightclub, the complainant became involved in a confrontation with a group of five males. [2] The Crown alleges that the confrontation became violent and the complainant was violently attacked by this group. [3] The Crown alleges that Christopher William Irwin (“Irwin”) was one of the assailants. [4] On June 28, 2016, an Information was sworn alleging that Irwin, along with Kennie Jiang (“Jiang), Rohan Johnson(“Johnson”), Aman Manj (“Manj”), and Quy Nguyen (“Nguyen”) assaulted the complainant, causing bodily harm to the complainantcontrary to s. 267(

b) of the Criminal Code of Canada (the “Code”). [5] Manj has also been charged that in committing an assault upon the complainant, he did use or threaten to use a weapon, abottle, contrary to s. 267(

a) of the Code. [6] The Crown has directed a Stay of Proceedings in relation to charges respecting Nguyen. [7] The complainant was unable to identify any of the accused. The case for the Crown is dependent upon recognition evidence,which includes closed caption television (“CCTV”) seized from the nightclub and recognition evidence anticipated to be led fromvarious police officers from prior interactions with the accused. [8] The trial commenced on September 25, 2017. The trial is set to end November 20, 2018, though I am not confident that it willin fact end on that date. [9] Irwin is seeking a Judicial Stay of Proceedings submitting that his guaranteed s. 11(

b) right to be tried within a reasonable timepursuant to the Canadian Charter of Rights and Freedoms (the “Charter”) has been denied. II. LEGAL FRAMEWORK (

i) Section 11(

b) of the Charter guarantees: 11. Any person charged with an offence has the right … (

b) to be tried within a reasonable time; [10] This application is founded upon the Supreme Court of Canada (the “SCC”) decision in R. v. Jordan, 2016 SCC 27 (“Jordan”). At para. 105, the SCC summarizes the framework applicable to s. 11(

b) applications: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months forcases tried in provincial court and 30 months for cases tried in a Superior Court. Defence delay does not count towards the presumptiveceiling; • Once at the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonablenessbased on exceptional circumstances; • Below the presumptive ceiling, and clear cases, the defence may show that the delay is unreasonable.

To do so the defencemust establish two things: 1) It took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and, 2) The case took markedly longer than it reasonably should have; • For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to theparties’ reliance on the previous state of the law. (ii) Presumptive Ceiling [11] In R. v.

Singh, 2016 BCCA 427 (“Singh”), at para. 14, the Court of Appeal held that the application of the Jordanframework starts with the calculation of the total time that has gone by from the date of the charge to the actual or anticipated end of thetrial. (iii) Defence - Waived Delay [12] Defence waived delay may be explicit or implicit, but the waiver must be clear and unequivocal.

It is not the right to trial withina reasonable time itself that is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness:Jordan, at para. 61. (iv) Defence - Caused Delay [13] Delay which is caused solely by the conduct of the defence is “defence caused delay.” This includes: 1) Delay caused by deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests:

ibid. , at para. 63; 2) Delays in scheduling with the defence is not ready to proceed or available, where the Crown and the Court are available. If the Crown or the court are not available, the delay will not be attributable to the defence: ibid. , at para. 64; and, 3) Delay caused by other defence actions or conduct as found by the trial judge, but does not include defence actions legitimately taken to respond to the charges, e.g. preparation time, applications and requests that are not frivolous: ibid. , at para. 65. (

v) Exceptional Circumstances [ 14 ] If, after subtracting the defence waived delay and defence caused delay from the overall delay, the remaining delay is above the presumptive ceiling, the delay is presumptively unreasonable and the burden shifts to the Crown to justify the delay as having been due to exceptional circumstances. [ 15 ] In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable.

Circumstances do not need to be rare or entirely uncommon : ibid. , at para. 69. [ 16 ] There are two broad categories of exceptional circumstances: 1) Discrete and exceptional events including medical or family emergencies, or exceptional events that arise at trial such as a complainant’s unexpected recantation or international issues such as extradition: ibid ., at paras. 71 - 73; 2) Particularly complex cases: ibid ., at para. 77. [ 17 ] If the Crown has established the extraordinary circumstance threshold it must also be demonstrated by the Crown that it could not reasonably remedy or prevent the delays resulting from those circumstances: ibid., at para. 70. (vi) Defence Onus [ 18 ] If the calculation of the delay falls below the presumptive ceiling, the defence has the burden of demonstrating that it is unreasonable.

To do so, the defence must show that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have. In discharging their onus the defence is only required to act reasonably, not perfectly: ibid. at paras. 85 and 99. III.

CHRONOLOGY OF THE CASE [ 19 ] In its written submissions, the Crown largely accepted Irwin’s chronology of the case except for some supplemented additions relating to court dates on October 4, 2017 and October 5, 2017. [ 20 ] I have reproduced the defence’s chronology of the case as follows: Date Appearance Timeline 2015.12.31 Date of alleged offence. 2016.06.28 Information sworn (Tab 1). Arrest warrant issued for Mr. Irwin. 0 days 2016.06.29 Mr. Irwin is arrested in Sechelt and subsequently granted judicial interim release.

The other accused are arrested and dealt with at Vancouver Provincial Court. 1D 2016.07.08 Supreme Court of Canada releases its decision in Jordan . 2016.07.13 Appearance in Court 307 at 222 Main Street for Mr. Irwin only. Mr. Irwin receives the initial disclosure materials from Crown Counsel (Tab 2). The co-accused had been adjourned to a different date, so Mr. Irwin was adjourned to that date to reunite the files. 15 D 2016.07.26 Ms. Williams, for Mr. Irwin, sends a letter for further disclosure (Tab 3). All accused appear in courtroom 307.

The matter is adjourned due to outstanding disclosure. 28D 2016.07.28 Report to Crown Counsel v1 sent to all counsel. It includes police statements from Det. Jaswal and Cst. van Eerd detailing their recognition of Mr. Irwin (Tab 4). Cst. van Eerd stated that she had never seen or met Mr. Irwin in person. Det. Jaswal’s report indicated a single interaction from 2015 30D 2016.08.15 Ms. Williams contacts Crown Counsel and advises that Mr. Irwin intends to set this matter for trial. Crown Counsel Ms.

Carmichael advises that the Crown would require until after Labour Day to assign a trial Crown. 48D 2016.08.17 Appearance in courtroom 307. The matter is adjourned to September 7, 2016, for trial Crown to be assigned. 50D

2016.08.25 By email, Crown Counsel Ms. Turnbull, requests an adjournment of the September 7, 2016, date as no trial Crown has been assigned yet. Ms. Turnbull advises that the trial Crown would need time to review the file and have discussions with counsel. All counsel “acquiesced to the inevitable” to the Crown’s request. The matter is adjourned from September 7 to September 15 by consent requisition. 58D 2016.09.15 Ms. Tomasson sends an email to counsel indicating that she will be the trial Crown and setting out that it is her understanding that the matter is for trial. Ms.

Tomasson estimates 12 days would be required for the Crown case and seeks admissions. The Crown is prepared to arraign the file from this date. Ms. Williams is also in a position to arraign the matter. 79D 2016.09.21 Appearance in courtroom 307. The matter is adjourned for a pre-trial conference, as the Crown time estimate for trial exceeds 7 days. 85D 2016.09.27 Pre-trial conference #1 in chambers before Judge Galati. Crown Counsel advises that new video evidence has been created (“the circle video”) and should be provided to the defence shortly.

Counsel are invited to arrange an appointment to attend Crown Counsel’s office to view the circle video; Ms. Williams attends. The pre-trial conference is adjourned as the disclosure has not been provided 91D 2016.09.28 The circle video is disclosed to the defence. (Tab 5) 92D 2016.10.05 Discussions between Ms. Williams and Ms. Tomasson regarding outstanding disclosure. Ms. Williams forwarded her July 26, 2017 letter to Ms. Tomasson. Both Ms. Williams and Ms. Tomasson are in a position to set the matter for trial. 99D 2016.10.12 Pre-trial conference #2 in chambers before Judge Galati.

There are ongoing resolution discussions involving three of Mr. Irwin’s co- accused, and so the pre-trial conference is adjourned again. 106D 2016.10.24 Pre-trial conference #3 in chambers before Judge Galati. All accused send agents to appear on their behalf. Agent for Mr. Irwin indicates Mr. Irwin intends to proceed to trial. The Crown expresses concern about the lack of admissions. The defence expresses concerns over the general nature of the wording of the admissions. Crown Counsel advised that she would send written admissions to the defence for consideration.

Galati J. orders that all counsel attend for another pre- trial conference. 118D 2016.11.07 Pre-trial conference #4 in chambers before Judge Galati. Irwin is prepared to set the matter for trial. Counsel proceeding to trial indicate that the requested admissions can be made. The time estimate is reduced from 12 days to 8. The matter is adjourned to November 10, 2016, for formal arraignment. 132D 2016.11.10 The matter is arraigned. All counsel attends the JCM’s office. The first trial date offered by the court is September 11, 2017. This date was available to all except for counsel, except for Mr.

Nathanson, counsel for Mr. Nguyen. The trial is scheduled for September 25, 26, 28, and 29; and October 2-5, 2017 (Tab 6). 135D 2017.08.17 Ms. Williams requests a witness list and trial plan from Crown Counsel. (Tab 7) 1Y 50D 2017.09.06 Mr. Myhre advises the defence that he is now the assigned trial Crown, and that will-says would be provided as witnesses are interviewed in the coming weeks, with a witness list to come no later than September 19. Ms. Williams follows up with Mr. Myhre and again requests a witness list and trial plan. Mr.

Myhre responds by giving a general time frame for the categories of witnesses, but declines to provide a final list until witnesses had been interviewed. 1Y 70D 2017.09.14 Mr. Nathanson gives notice seeking to exclude certain evidence relating to Mr. Nguyen under s. 24(2) of the Charter . 1Y 78D

2017.09.15 and 2017.09.19 Mr. Myhre provides will-says obtained from the trial preparation interviews from several of the intended trial witnesses, including Cst. van Eerd and Det. Jaswal Included within the will says of the witnesses are newly disclosed information relating to identification of Mr. Irwin which Crown Counsel seeks to introduce into evidence at trial. Cst. Van Eerd and Det. Jaswal purported to have interacted with Mr. Irwin on some ten occasions each. None of the PRIME reports, notes, or specific details relating to those interactions are disclosed at that time. Det.

Jaswal then provided a second will say intending to replace the first one), which differed significantly in the purported recognition evidence related to Mr. Irwin. 1Y 79D and 1Y 82D 2017.09.20 Mr. Myhre advises all counsel that he is in agreement with the Charter application filed by Mr. Nathanson and that therefore there would be a stay of proceedings against Mr. Nguyen. 1Y 83D 2017.09.21 Mr. Fowler, counsel for Mr. Manj, gives notice seeking to exclude the recognition evidence pertaining to Mr.

Manj under s. 24(2) of the Charter , and makes an accompanying request for disclosure of any notes of all past interactions between the recognition witnesses and Mr. Manj. 1Y 84D 2017.09.24 Ms. Williams requests further disclosure related to a traffic stop on Mr. Irwin in which Cst. van Eerd was involved (Tab 8). 1Y 88D 2017.09.25 Trial commences. Mr. Myhre forwards Ms. Williams’ disclosure request to Cst. van Eerd. Cst. van Eerd responds to the request the same day and provides the dates of the interactions, but no reports or notes of the same. The time frame of the interactions with Cst. van Eerd and Mr.

Irwin is from July 19, 2016 to July 6, 2017. 1Y 89D 2017.09.26 Trial continues. Mr. Myhre sends email to all counsel providing the expected timeline for disclosure and suggesting options for moving forward with the trial. Due to the outstanding disclosure requests, continuation dates of September 28 and 29 are dropped and the trial is adjourned to October 2. 1Y 90D 2017.09.28 Mr. Myhre sends Ms. Williams some of the disclosure provided by Cst. van Eerd, which is a recently drafted will say only. Ms. Williams advises that she believes more is required, including radio communication related to the traffic stop. Mr.

Myhre passes disclosure request on to Cst. van Eerd. 1Y 92D 2017.10.01 Cst. van Eerd advises that radio communications have been requested and provides a statement regarding her role in the traffic stop of Mr. Irwin. 1Y 95D 2017.10.02 Trial continues. Mr. Myhre provides Ms. Williams with Cst. van Eerd’s statement and advises that the timeline for the disclosure of radio communications is uncertain. Mr. Myhre writes to all counsel seeking formal Charter notice and canvassing ideas for moving the trial forward. Although the recognition voir dire is a Crown application, Ms.

Williams advises seeking to exclude the evidence of Det. Jaswal and Cst. van Eerd relating to their recognition of Mr. Irwin under s. 24(2) of the Charter . Det. Jaswal (who was out of the country between September 25 and October 1), provides disclosure of notes of all prior contacts with Mr. Irwin. 1Y 96D 2017.10.03 Trial continues. Mr. Myhre provides Ms. Williams with the notes forwarded by Det. Jaswal. 1Y 97D 2017.10.04 Trial continues. Vukelich hearing with respect to whether the remedy of exclusion of evidence is an available remedy.

Court finds that it is an available remedy. 1Y 98D 2017.10.05 Trial continues. Severance application is made by Mr. Myhre to sever Mr. Johnson from the other accused, as the evidence related to him has concluded. The application is denied. 1Y 99D 2017.10.05- 2017.10.11 Email communications between the Judicial Case Manager and counsel in order to

schedule five days for the recognition evidence voir dire. 1 Y 99 D to 1Y105D

2017.10.23 The dates for the voir dire are scheduled: May 23, 24, and 25, 2018 and June 25 and 26, 2018. Earlier dates were offered in November, December, January, February and May which were available to the court. Co-accused counsel and/or Crown Counsel were not available for those dates. Irwin was available for all of the dates offered. (Tab 9) 1Y 117D 2017.11.01 A trial conference is held in order to confirm the scheduled continuation dates. 1Y 126D 2017.11.20 Ms. Williams files s. 11(

b) notice on behalf of Mr. Irwin. 1Y 145D 2017.12.26 Jordan presumptive ceiling of 18 months 1Y 180D 2018.01.02 Radio communications of the motor vehicle stop of Mr. Irwin involving Cst. van Eerd are disclosed to Ms. Williams. 1Y 187D 2018.06.26 Prospective end of the voir dire . 1Y 363D 2018.11.20 Trial set to end. [ 21 ] By way of supplemental additions, the Crown noted that on October 4, 2017, the Crown applied to sever Johnson from the proceedings. This was opposed by all counsel. In particular, Irwin took the position that “the interests of justice in having the trial proceed together was far greater than the 11(

b) rights of the accused.” [ 22 ] The Crown noted that on October 5, 2017, their Vukelich application seeking to have the court summarily dismiss the applications of Irwin, Manj and Jiang to exclude evidence of the recognition witnesses was dismissed. [ 23 ] It was also on October 5, 2017, that the case was adjourned to November 1, 2017, with the Crown and counsel for Irwin, Manj and Jiang agreeing to co-ordinate with the Judicial Case Managers (the “JCMs’”) to

schedule a further five days for the ongoing Charter applications and the recognition evidence. [ 24 ] Counsel for Irwin and counsel for Manj and Jiang were unable to set dates for the continuation of the Charter applications as not all counsel had their 2018 schedules. The Crown sent a confirmatory email that dates had been offered by the JCMs’ in November and December 2017, but those dates were declined because either or both counsel for Manj and Jiang were not available. IV. POSITION OF THE PARTIES (

i) Irwin [ 25 ] Irwin’s counsel submits that the approximate two-year delay in this case far exceeds the Jordan guidelines and, therefore, a Judicial Stay of Proceedings is justified. [ 26 ] Her other submissions can be summarized as follows: • That the primary cause of the delay turns on the late disclosure of relevant particulars from Cst. Van Eerd and Cst. Jaswal central to the issue of identification. • She received initial particulars relating to Cst. Van Eerd and Cst. Jaswal in early July 2016. • That in the initial disclosure package there was a narrative dated May 22, 2016, by Cst.

Van Eerd in which she notes that she recognizes Irwin from an identification poster and “from seeing his mug shot on numerous occasions due to his affiliation with gang members and organized crime figures I have investigated.” • That in the initial disclosure package there was a narrative dated May 17, 2016, by Cst. Jaswal in which he notes that he can identify Irwin, “as I am a police officer and Christopher Irwin has been subject of numerous police encounters.

I met Christopher Irwin when he was associating with members of organized crime.” His narrative notes that he last saw Irwin on July 19, 2015, during a restaurant watch check. • That in correspondence to the Crown dated July 26, 2016, she advises that her initial particulars did not include notes and reports from Cst. Van Eerd and Cst. Jaswal. She requested that those materials be provided at the Crown’s earliest convenience. • The Crown responded in an email to Irwin’s counsel dated October 5, 2016. In the email, the Crown confirmed receiving the request for notes and reports from Cst. Van Eerd and Cst. Jaswal.

The email goes on to confirm that Irwin’s counsel had received disclosure in relation to Cst. Van Eerd’s and Cst. Jaswal’s notes and reports. • On September 15, 2017, Cst. Van Eerd was interviewed by the Crown.

Following her interview, the Crown sent a “will say” statement to Irwin’s counsel that reads in part: o Since poster came out, I have done roughly 10 interactions with [Irwin], all curfew checks except one traffic stop with PC Charles; curfew checks almost always last five seconds, but one was a five-minute chat; traffic stop lasted 5-10 minutes. o Recognize [Irwin] from short cropped light hair, shorter on sides; distinctive long face with pointed jawline almost jutting; slender/medium/athletic build. • On September 20, 2017, Cst. Jaswal was interviewed by the Crown.

Following his interview the Crown sent a “will say” statement to Irwin’s counsel that reads in part: o Prior to seeing the video, had only seen mug shots of Irwin;

o Have had about 10 interactions with him: curfew checks and bar watch (interactions ranged from 2 to 10 minutes); o Most recent contact was either when he ran away when I was doing a bar watch, or a curfew checks; those were around beginning2017. • The existence of Cst. Van Eerd’s late disclosure only came to light 13 days prior to the commencement of the trial. Theexistence of Cst.

Jaswal’s late disclosure only came to light 9 days prior to the commencement of the trial • No explanation has been provided to her for the failure of the Crown, which includes the police, to disclose in a timely waythe existence of the identification evidence that is over and above the initial disclosure materials. • This is particularly concerning as it will be the intention of the Crown to use Cst. Van Eerd’s and Cst.

Jaswal’s priorcontacts with Irwin to bolster their identification from the nightclub CCTV evidence and still photographs downloaded from thenightclub CCTV. • As of mid-January of 2018, when Irwin’s counsel filed written submissions on this application, she was still awaitingdisclosure in relation to an interaction of Cst. Van Eerd had with Irwin in relation to a motor vehicle stop on April 20, 2017. • That there is a high onus on the Crown to make proper and timely disclosure of all details of the recognition evidence that itintends to produce at trial.

In this case, they have not done so. • The right to make full answer and defence, particularly through cross-examination, are key pillars in the principles offundamental justice as enunciated in cases such as R. v. Lyttle, 2004 SCC 5 and R. v.

Oslin, (SCC), [1993] 4 S.C.R. 595. • That it is incumbent on the respondent to ensure there is proper and timely disclosure of all of the relevant recognitionevidence, upon which it will rely to prevent any unwarranted constraint in her ability to cross examine. • She submits that it is significant that the onus to establish the admissibility of the recognition evidence rests on the Crown.It is not for Irwin to advise that he is challenging the evidence; rather, it is for the Crown to establish admissibility.

As the Crownintends to rely upon the recognition evidence, it was incumbent upon it to ensure that proper and complete disclosure is made to Irwin ina timely way. • There has been no defence delay or defence waiver, and that there are no other exceptional circumstances to justify thedelay and, therefore, a Judicial Stay of Proceedings should be directed by this Court pursuant to s. 24(1) of the Charter for the breach ofIrwin’s s. 11(

b) Charter right. (ii) The Crown [27] The Crown submits that this case is projected to end on November 20, 2018. The current projected time from the swearing ofthe Information until the completion of the trial is 28 months and 23 days, which is well beyond the Jordan presumptive limit of 18months. [28] Crown’s other submissions can be summarized as follows: • That the vast majority of the delay falls at the feet of the Crown.

However, the Crown takes the position that the delaybetween the first scheduled trial date and the currently scheduled trial date was triggered by untimely disclosure requests and Charterapplications, and exacerbated by the difficulty of co-ordinating busy counsel schedules. • That all counsel for the defendants were well aware that recognition evidence formed a significant portion of therespondent’s trial time estimate. • It was not until September 25, 2017, while in court, that counsel for Manj raised the prospect that there would be a Charterchallenge in relation to the admissibility of the recognition evidence.

At no time prior to September 24, 2017, did Irwin’s counsel requestfurther disclosure relating to the recognition witnesses’ prior familiarity with Irwin. • That despite four pre-trial conferences, the complaints about failure to disclose and anticipated Charter applications cameinto play just days before, and developed during the trial in September of 2017. • That the Charter challenges being advanced by Irwin, Manj and Jiang are novel applications.

The Crown is unaware of anycase law that would render inadmissible some of the witnesses’ prior interactions with any of the accused as being in breach of anyCharter right. • An inference can be drawn that Irwin’s counsel did not consider any possible Charter remedy until the issue was raised bycounsel for Manj. The Crown submits that Irwin’s disclosure request and subsequent Charter Notice filed October 3, 2017, are late byany standard. • What happened in this case is not markedly different than the circumstances in R. v. Nazarek, 2017 BCSC 2340.

InNazarek, counsel for the accused made a disclosure application two weeks prior to the commencement of his trial. The application wasgranted which resulted in the trial being adjourned to a later date. • In Nazarek, at paras. 92 - 93 and 98, the Court ruled that the late disclosure application exhibited a marked inefficiency anda marked indifference towards delay and, therefore, the delay fell at the feet of the defence. • That the time to arraign the file from September 27, 2016, to November 10, 2016, would fall into the exceptionalcircumstance category.

The time period from September 11, 2017, to September 25, 2017, would fall into the exceptional circumstance

category as counsel for Nguyen was not available. • Otherwise the vast majority of the delay between arraignment and the commencement of the trial was institutional and should count against the Jordan ceiling. • That it is the time period between October 5, 2017, and the anticipated last day of trial of November 20, 2018, which is the most significant delay.

This, the Crown submits, is entirely due to the inaction or unavailability of counsel for Irwin’s co-accused, and supported by the JCMs’ scheduling memos. • It is this period of delay that it submits should be categorized as an exceptional circumstance as it was entirely out of the control of the Crown. The delay was the cost of doing business. • It does not submit that Irwin’s counsel was inactive or unavailable to establish continuation dates.

Indeed, in the Crown’s Supplemental Chronology it notes that between November 1, 2017, and January 2, 2018, there were “email communication between counsel regarding time required, and the dates available, for closing arguments. In general, Ms.

Williams responds promptly with her time estimate and availability, but as of January 2, 2018, counsel for Johnson had still not provided his availability.” • It took proactive steps to move the file forward after October 5, 2017, through repeated efforts to discuss potential delays with all counsel and with the Court. • To mitigate delay it applied to sever Johnson, one of the other accused, in an effort to eliminate his counsel’s

schedule from the mix. The application was opposed by all counsel and denied by the Court. In particular, it noted that Irwin’s counsel took the position that “the interests of justice in having the trial proceed together was far greater than the 11(

b) rights of the accused”: para. 41 of Crown Submissions. • That the chronology of this case demonstrates that it, “responded promptly and cooperatively to the late disclosure requests, made considerable efforts to keep the trial going during the dates scheduled for trial, and when that failed, to minimize the delay that would follow”: ibid ., at para. 44. • Finally, while this case does not involve an inordinate amount of trial or preparation time, complexities arose as contemplated in Jordan because the delay was reasonably unavoidable and the facts would establish that it did everything it could to mitigate the delay. V. ANALYSIS (

i) Calculation of Overall Delay [ 29 ] The Information was sworn on June 28, 2016. The trial is set to end November 20, 2018. [ 30 ] Based on those dates, I calculate the total delay at 28 months and 23 days. (ii) Calculation of Waived Delay by Irwin [ 31 ] The waiver may be explicit or implicit, but the waiver must be clear and unequivocal.

A review of the available evidentiary record does not reveal an instance in which counsel for Irwin waived a delay of the proceedings. [ 32 ] I do not find that Irwin waived any delay in this case. (iii) Calculation of Delay Caused by Irwin [ 33 ] Counsel for Irwin forwarded correspondence by email to the Crown on August 18, 2017, requesting that she be provided with a witness list and witness

schedule at their “earliest convenience”. Subsequently, the carriage of the prosecution was reassigned to the current Crown on or about September 9, 2017. [ 34 ] Cst. Van Eerd’s “will say” statement relating to her interactions with Irwin were forwarded to the office of Irwin’s counsel by email on Friday, September 15, 2017, at 4:03 PM. The “will say” of Cst. Van Eerd notes “roughly 10 interactions” with Irwin. [ 35 ] On September 24, 2017, Irwin’s counsel forwarded correspondence by email to the Crown noting: In the Van Eerd interview

summary provided on September 15, 2017, she refers to a traffic stop of Mr. Irwin. Please provide complete disclosure of this incident including all notes, reports, and dispatch logs, so then I can determine what, if any, position to take with respect to the admissibility of this identification evidence. [ 36 ] On September 25, 2017, Irwin’s counsel advised the Court that, depending on her disclosure request, that Irwin may advance a Charter argument: MS. WILLIAMS: With respect to the possibility of a Charter application for Mr.

Irwin, My Lord, it depends upon the disclosure that I'm going to receive from my friend. As I stated earlier, I just received a will say about a week ago which provided a new observation of which there had been no disclosure made. So I need to see that disclosure first before I can advise whether there will be a Charter application. And that relates directly to witness number five, P.C. Van Eerd. (Transcript, September 25, 2017, p. 89, ll. 29-38) [ 37 ] On Monday, September 25, 2017, at 10:49 PM Cst.

Van Eerd sent an email to the Crown in which she identifies six curfew checks and one traffic stop between July 19, 2016, and July 7, 2017. There are few details provided in the email. This email was

forwarded to Irwin’s counsel on September 28, 2017, at 10:51 AM. [ 38 ] At 11:10 AM on September 28, 2017, Irwin’s counsel forwarded an email in which she advises that the disclosure is, “definitely not complete, particularly with respect to the traffic stop. How it is that Cst. Van Eerd came to be at that location? I suspect that there was some sort of radio communication regarding a stop of Irwin between the officer who actually did the stop in the central dispatch. She didn’t just come upon Irwin by happenstance.

Also, where is all the disclosure from that stop?” [ 39 ] As a result of follow-up by the Crown, Irwin’s counsel went to ECCOM on Saturday, September 30, 2017, to listen to radio communication’s regarding the traffic stop. In an email forwarded to the office of the Crown on October 1, 2017, at 4 PM Irwin’s counsel requested a recording of the radio communications with the hope that this could be done “fairly quickly.” [ 40 ] Cst. Jaswal’s identification “will say” was sent to Irwin’s counsel on September 19, 2017. Particulars related to his contacts with Irwin were not available until October 2017, as Cst.

Jaswal was on vacation. An email dated October 2, 2017, from Cst. Jaswal disclosing his contacts with Irwin was sent by the Crown on October 3, 2017, to Irwin’s counsel. [ 41 ] The details of those contacts are sparse. They mostly relate to curfew checks. There were three curfew checks in 2016, a curfew check in 2017 and a motor vehicle stop in 2017. [ 42 ] On October 3, 2017, Irwin’s counsel filed a Notice of Application for Exclusion of Evidence asserting breaches of ss. 8 , 9 and 10 of the Charter . In her notice, Irwin’s counsel submits that Cst.

Van Eerd’s observations of the various curfew checks of Irwin, the traffic stop of Irwin, and Cst. Jaswal’s observations relating to a “Bar Watch” eviction incident involving Irwin and other contacts, was going to be used as recognition evidence, under circumstances in which Irwin’s counsel asserts was in breach of the Charter . [ 43 ] Whether novel or not, I find the actions by Irwin’s counsel to be legitimately taken to respond to the charges. Once disclosure was made of Cst. Van Eerd’s and Cst.

Jaswal’s identification “will say” statements in September of 2017, Irwin’s counsel acted properly and promptly in requesting full disclosure. Indeed, I conclude that she was obliged to seek this disclosure to ensure that Irwin could make full answer and defence to the charges. [ 44 ] In Nazarek , supra , an Information to Obtain a Search Warrant had been disclosed to the defence in a timely manner. On the eve of the trial, the defence requested disclosure regarding one of three informants. Disclosure relating to the other two informants had been completed.

As was noted by the court, defence should have made a timely application for the disclosure relating to the third informant, to avoid having to adjourn the trial: para. 93. [ 45 ] The disclosure request in this case is entirely different. As Irwin’s counsel notes, the nature and scope of the recognition evidence sought to be adduced by Crown “fundamentally changed” on September 15, 2017. Prior to that date, there was no indication whatsoever that Cst. Van Eerd had any direct dealings with Irwin. [ 46 ] The late disclosure related to numerous interactions with Irwin by both Cst. Jaswal and Cst.

Van Eerd, many of which had not occurred at the arraignment stage when Crown stated they intended to rely on recognition evidence. The post-arraignment recognition evidence was predominately obtained through curfew checks of Irwin related to his bail conditions. The contacts were not minor or coincidental; rather, they were intentional, leading me to infer they were created for the purpose of bolstering the recognition evidence. [ 47 ] It is clear from R. v.

McNeil , 2009 SCC 3 , at para. 14 , that the Crown and the police are one and the same in relation to their obligations to disclose: [14] … The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms .

The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. [ 48 ] This duty on the Crown and the police to disclose the fruits of a criminal investigation was discussed by this Court in R. v.

Cooper , 2017 BCPC 11 , at paras. 84 through 86: [84] The duty to disclose the fruits of the investigation into the alleged criminal conduct of Irwin rests with the Crown and the police. Counsel for the applicant could not have requested that which he did not know previously existed and yet ought to have been disclosed as part of the disclosure package. [85] The Crown and the police have a duty to disclose. These obligations, including defence counsel’s corresponding responsibility to request disclosure, were thoroughly canvassed by Arnold J. in R. v. Apostol , 2016 NSSC 241 . In

summary, those obligations include: • The duty of the Crown to disclose all information reasonably capable of affecting an accused’s ability to make full answer and defence at an early stage: para. 59; • These disclosure obligations extend to all material in the hands of the prosecuting entity.

There is a corollary duty on police investigators to disclose to the Crown all relevant material in their possession: para. 60; • It is widely acknowledged that the Crown cannot explain the failure to disclose relevant materials on the basis that the investigating police force failed to disclose it to the Crown: ibid ; • Recognizing the importance of an accused in seeking disclosure, an accused will often be justified in seeking an adjournment, or refusing to proceed to the next step in the proceeding, where outstanding disclosure consists of material that is relevant and significant to the Crown’s case: para. 64;

• The Crown is not a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, when the Crown is put on notice of the existence of relevant information they simply cannot disregard the matter: para. 65; • As officers of the Court, defence counsel have an obligation to pursue disclosure diligently.

When defence counsel becomes aware of a failure to disclose, from other relevant material produced by the crown, then defence counsel must not remain passive in the face of that information. They must diligently pursue disclosure: para. 66. [86] There is no suggestion in this case that counsel for the applicant became aware from other disclosure material of the existence of ITO #2.

Rather, it was the Crown whom ought to have known of the existence of ITO #2 in their preparation for trial. [ 49 ] I accept the submission of Irwin’s counsel that it would have been a “fruitless exercise” to cross-examine witnesses in relation to their prior interactions with Irwin without having the notes and reports which underlie those interactions. [ 50 ] I do not find that Irwin’s request for disclosure on the eve of this trial amounts to disclosure so late that it should weigh against Irwin.

Additionally, while Irwin’s counsel filed their Charter Notice subsequent to Manj’s counsel filing his Charter notice, I am not prepared to infer that Irwin’s counsel’s conduct in advancing the Charter Notice was a deliberate and calculated defence tactic to cause delay. [ 51 ] I do not find that Irwin is responsible for any defence caused delay. (iv) Exceptional Circumstances [ 52 ] As I have found that Irwin has not waived any delay and is not responsible for any defence caused delay, it must be determined if the Crown has proven that there are exceptional circumstances justifying the delay in this case. [ 53 ] The Crown concedes that this case is not one that involves an inordinate amount of trial preparation time.

The Crown concedes that the Charter issues raised may be “novel”, but are not complicated. [ 54 ] The Crown submits that due to the multiple lawyers and scheduling difficulties that the delay became “reasonably unavoidable and the facts amply displayed that the Crown did everything it could to mitigate the delay”: Crown Written Submission, at para. 45. [ 55 ] In Jordan , supra , at para. 77 , the SCC comments that proceeding jointly against multiple co-accuseds “may also impact the complexity of the case.” [ 56 ] The Crown submits that they endeavoured to mitigate the delay by proposing that Johnson be severed from his co-accused.

This proposal was opposed by counsel for the defendants. I ruled that the interests of justice required that the accused be tried together. [ 57 ] The Crown has relied upon the decision in Singh in support of their submission that “delays caused by the

schedule of counsel are an exceptional circumstance that justify delay above the Jordan ceiling”: Crown Written Submissions, at para. 17. [ 58 ] The Singh case involved three accused charged in a very complex conspiracy. The BCCA at para. 87 describe the nature of the legal proceedings: [87] This was not a simple proceeding. It contains many of the badges of complexity noted in Jordan . The charges concerned a multi- party conspiracy over several months in British Columbia, Ontario, and California. The parties reserved five weeks for pre-trial voir dires and four weeks for the jury trial.

Disclosure was voluminous, consisting of 60,000 pages of material, plus 250,000 pages of wiretap conversations. Many of the conversations were in Cantonese or Punjabi. Each accused was individually represented. [ 59 ] The Court also found both discrete circumstances and case complexity circumstances were in play to establish exceptional circumstances: paras. 83, 88 - 91. [ 60 ] The Court concluded at para. 94 that there were exceptional circumstances arising from the complexity of the case: [94] I find that exceptional circumstances arise from the complexity of this case.

The time the case has taken was justified. I find the delay to be reasonable and would not issue a stay. I need not therefore consider the transitional provisions. [ 61 ] The Crown submits that, absent additional complicating factors, and unless there is some reason it ought to have proceeded separately against each of the accused, that there is a “clear implication” from para. 94 that, “delays caused by the

schedule of counsel are an exceptional circumstance that justify delay above the Jordan ceiling.” [ 62 ] I do not accept that the Court’s comments at para. 94., in the context of that case, establish a “clear implication” that delays caused by the

schedule of counsel is an exceptional circumstance. I agree there may be circumstances where they may be an exceptional circumstance, but as far as Irwin is concerned, they are not an exceptional circumstance that would justify the delay in this case. [ 63 ] Importantly, I find that it is the failure to disclose in a timely way the recognition evidence of Cst. Van Eerd and Cst. Jaswal that led to Irwin’s counsel seeking an adjournment. This evidence only came to light some 15 months after charges were laid when the Crown first interviewed Cst. Van Eerd and Cst.

Jaswal in September of 2017. [ 64 ] It is after the adjournment was granted that the delay took on added significance due to scheduling difficulties for Johnson’s counsel and Manj’s counsel. The Crown conceded they were alive to the reality that these two lawyers have notoriously busy schedules.

The evidentiary record does not establish that scheduling difficulties fell at the feet of Irwin’s counsel. [ 65 ] The Crown cites para. 91 of Singh that “in many cases delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.” I am of the view that in this

case, the Crown has a pressing need to discharge its burden to provide full disclosure in a timely manner. Given there are four accused represented by four different counsel, the Crown should be extra vigilant to provide full and timely disclosure so as to avoid delay arising out of scheduling difficulties, rather than viewing such delay as a merely a cost of doing business. [ 66 ] I do not accept the submission of the Crown that the delay following the adjournment of this case in October 2017 was unavoidable. It was avoidable. The Crown had 15 months from the date that charges were laid until the date that Cst.

Van Eerd was interviewed to ensure there was ongoing disclosure on the most important evidentiary issue in this case - recognition evidence. [ 67 ] Irwin’s counsel sent correspondence to the Crown on July 26, 2016, specifically requesting “Notes and reports from PC Van Eerd” and “Notes and reports from Cst. Jaswal”.

These requests were not fulfilled in this case. [ 68 ] I do not find that there are exceptional circumstances to justify any periods of delay in this case. (v.) Extraordinary Events [ 69 ] I do not find that the Crown has proven that there are any extraordinary events that justify the delay in this case. (vi.) Transitional Exceptional Circumstances [ 70 ] I do not find that transitional exceptional circumstances apply in the calculation of the delay in this case. VI. CONCLUSION [ 71 ] The delay in this case is significantly greater than the Jordan ceiling.

As such, I must direct a Judicial Stay of Proceedings in relation to Irwin. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia