Her Majesty the Queen - v. -, 2019 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 48 Date: August 16, 2019 Information: 991019566 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon Springett Appearing: Ms. A. Rozen For the Crown Ms. K. Pocha For the Accused DECISION ON CHARTER APPLICATION FOR DELAY S. L. METIVIER , J Introduction [ 1 ] On July 17, 2017, the accused, Brandon Springett, along with two co-accused, were charged with possession of cocaine for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act .

On December 27, 2017, Mr. Springett elected trial in Provincial Court. At a subsequent docket appearance on January 18, 2018, one of the co-accused elected trial in the Court of Queen’s Bench and a preliminary inquiry was set for all of them on June 19, 2018. The preliminary inquiry did not proceed on that date as one of the co-accused pleaded out to his charges while Mr. Springett and the remaining co-accused confirmed that they wanted to be tried in Provincial Court. [ 2 ] The matter was scheduled for trial in Provincial Court on November 14 and 15, 2018. On the first scheduled day of trial, the

second co-accused pleaded out to his charges and the trial commenced against Mr. Springett only. The Crown closed its case on November 15, 2018, and the trial was adjourned to February 5, 2019, for the trial judge to render his decision on the voir dire . After delivering his decision on the voir dire , the trial judge mistakenly rendered a judgment on the trial proper without first hearing closing arguments resulting in the declaration of a mistrial on March 27, 2019. [ 3 ] A second trial was scheduled to proceed in Provincial Court on July 22, 23 and 24, 2019. On June 21, 2019, Mr.

Springett filed an application for a stay of proceedings alleging a breach of the right to be tried within a reasonable time under s. 11(

b) of the Canadian Charter of Rights and Freedoms . The Charter application proceeded on the first day of trial. Materials filed on the Charter application consisted of the court record and a transcript of prior court proceedings relating to adjournments, which was marked as Exhibit # P-1 on the voir dire . [ 4 ] In R v Jordan , 2016 SCC 27 [ Jordan ], the Supreme Court of Canada established a legal framework for deciding whether an accused person’s right to trial with a reasonable time has been breached. The Court set two presumptive ceilings of delay beyond which the delay is presumed to be unreasonable.

The presumptive ceiling, calculated from the date of the charge to the actual or anticipated end of trial, is 18 months for cases going to trial in provincial court and 30 months for cases going to trial in superior court, or cases going to trial in the provincial court after a preliminary inquiry ( Jordan , at para. 46 ). [ 5 ] Defence delay does not count in calculating whether the presumptive ceiling has been reached.

Defence delay is divided into two components: (1) delay waived by the defence; and (2) delay that is caused solely by the conduct of the defence ( Jordan , at paras. 61 and 63 ). [ 6 ] While delay that exceeds the ceiling is presumptively unreasonable, the Crown may rebut the presumption by showing that the delay is reasonable because of the presence of exceptional circumstances, which the Court defined as those that “lie outside the Crown’s control in the sense that (1) they are reasonable unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” ( Jordan , at para. 69 ). [ 7 ] Information # 991019566 was sworn on July 17, 2017. The trial was completed on July 24, 2019.

Accordingly, the total delay between the date of the charge and the end of trial is 737 days or 24 months and 7 day. [ 8 ] The issues to be determined in this application are: (1) which of the two presumptive ceilings set out in Jordan applies in this case; and (2) whether the total delay in this case (minus defence delay and delay attributable to exceptional circumstances) exceeds the presumptive ceiling. [ 9 ] Mr.

Springett submits that the presumptive ceiling is 18 months as he elected to be tried in Provincial Court and the trial occurred in Provincial Court. [ 10 ] The Crown contends that the 30-month presumptive ceiling applies in cases like this where an accused person makes an election that requires provincial courts to

schedule a preliminary hearing, even if the preliminary hearing does not actually proceed because it was either waived, or a re-election occurred. Alternatively, the Crown argues that the total delay in this case does not exceed 18 months once defence delay and exceptional circumstances are taken into account. Analysis A. Which of the two “presumptive ceilings” set out in Jordan applies in this case? [ 11 ] The Crown submits that by operation of s. 565(1)(

b) of the Criminal Code Mr. Springett was deemed to have elected trial in the Court of Queen’s Bench by a judge and jury and that he subsequently re-elected to be tried in Provincial Court on the day the preliminary inquiry was scheduled to proceed. Relying on cases from the Courts of Appeal of Newfoundland and Labrador and New Brunswick ( R v Kaulback , 2018 NLCA 8 [Kaulback]; R v S.(D.M.), 2016 NBCA 71 [D.M.S ]), the Crown argues that the exception carved out in Jordan for “cases going to trial in the provincial court after a preliminary inquiry” ( Jordan , at para. 49 ) includes those cases where an accused person makes an election that requires the provincial court to

schedule a preliminary hearing, even if the preliminary hearing does not actually proceed because it was either waived, or a re-election occurred.

i) Elections/Re-elections [ 12 ] During a docket appearance on December 27, 2017, Mr. Springett’s lawyer stated that she was attempting to coordinate trial dates with the co-accused, then proceeded to elect trial in Provincial Court and enter a “not guilty” plea. The matter was adjourned to January 18, 2018, to set a trial date. [ 13 ] On January 18, 2018, counsel for one of the co-accused stated that his client was electing trial in the Court of Queen’s Bench by judge alone and suggested that the trial dates provided by the case manager be used for the preliminary inquiry.

This led to the following exchange between the Judge and Mr. Springett’s lawyer: THE COURT: So that drags everybody to that same level. MS. TALBOT: Yeah. That’s right. Yeah. THE COURT: Okay. So election is waived. All – all elections are Queen’s Bench Judge and jury. MS. TALBOT: Well, yeah. THE COURT: Not that you like that –

MS. TALBOT: Exactly. THE COURT: --but that’s what’s – MS. TALBOT: Yeah. THE COURT: -- will be recorded. MS. TALBOT: Yes. [ 14 ] Pursuant to s. 567 and 565(1) of the Criminal Code , if the co-accused are unable to agree to their mode of trial, the judge may decline to record any election and the accused is deemed to have elected to be tried by a judge and jury. While the Judge in this case used the word “waived” instead of expressly declining to record the election, a deemed election is what effectively occurred on January 18,2018.

As the three co-accused did not agree on the mode of trial, all of them were deemed to have elected trial by a judge and jury. Unfortunately, the election was not properly recorded on the endorsement sheet related to Mr. Springett’s appearance on January 18 th , which resulted in some ongoing confusion of the Court and counsel, as evident from the transcripts of appearances on June 19, 2018 (the date of the preliminary hearing) and July 3, 2018 (to set trial dates): THE COURT: Now we’re into Mr. Springett? MR. SMITH: There should be just one Information, Your Honour. THE COURT: It is, 566. MS.

POCHA: Thank you, Your Honour. And I believe our election from the beginning was Provincial Court. THE COURT: It was. So I had an issue there as to whether you needed, then, to follow suit if it went to preliminary hearing ‘cause you’ve been bound by the elections of the co-accused. So, in any event, you want to stay in Provincial Court? MS. POCHA: We do, and a return date of July 3 rd , number 4, at 9:30 is agreeable for us, and that way we can attend to setting a trial date. THE COURT: Thank you. So on Information 566, the sole count, the election remains Provincial Court.

The matter is adjourned to the 3 rd of July, 9:30, in courtroom number 4, for the purpose of setting a trial date. … MS. POCHA: Good morning, Your Honour. Katherine Pocha appearing for Mr. SPRINGETT. He’s the co-accused on this file. THE COURT: Okay. MS. POCHA: And he is not present this morning. THE COURT: Thank you. … THE COURT: Okay. So there (sic) a bench warrant to be held for Mr. Springett. I’m sorry. So there was – there’s been a re-election on this, and was that –has that been done in writing?

UNIDENTIFIED SPEAKER: I—believe that was done on the last – there was a preliminary date set and the preliminary date ended up with a number of plea agreements, some Informaitons withdrawn. But then there was re-election to court. I think – I believe that was all done on the record. THE COURT: Okay. I know that – that sometimes we require a written form for re-election. Perhaps counsel could just – MS. BACHELOR: Okay. Your Honour, I’m not the assigned Crown. I don’t have the file, but I’ll make a note so that – THE COURT: Could you check into that, please? MS. BACHELOR: --we can get that sorted out, please.

THE COURT: Okay. Thank you very much. And if – if it’s required then if you could file it, that would be appreciated. UNIDENTIFIED SPEAKER: We can do that. [ 15 ] As Mr. Springett was deemed to have elected to be trial in the Court of Queen’s Bench by judge and jury, a re-election back to Provincial Court under s. 561(1) (

a) of the Criminal Code required the Crown’s written consent. It seems that the proper procedure for

re-election was not followed on June 19, 2018, due to the underlying confusion regarding Mr. Springett’s election. Nevertheless, it is clear from the transcripts or proceedings from June 19, 2018, and onward, that Mr. Springett’s intended to be tried in Provincial Court with the Crown’s consent.

Furthermore, prior to proceeding with the Charter application, both the Crown and Defence confirmed that they do not take issue with respect to the jurisdiction of this Court. ii) Presumptive Ceiling [ 16 ] The Supreme Court in Jordan created a bright-line rule in establishing a presumptive ceiling that is dependent on the level of court the case is going to trial, while carving out an explicit exception for cases “going to trial in the provincial court after a preliminary inquiry .” If the Court had intended to make an exception for cases going to trial in provincial court after an accused re-elects before or during a preliminary inquiry, then presumably it would not have chosen to use the word “after”.

Support for this plain language approach is found at para. 62 of Jordan, where the Court specifically addressed the possibility of re-election by an accused “either before or during their preliminary hearing”, and suggested that “it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as a condition of its consent” under s. 561 of the Criminal Code .

This distinction would be unnecessary had the Court’s intention been that the 30-month ceiling would apply to cases tried in provincial court before or during a preliminary inquiry. [ 17 ] In seeking to establish that the 30-month presumptive ceiling applies in this case, the Crown relies on decisions of the Court of Appeal of New Brunswick and the Court of Appeal of Newfoundland and Labrador in Kaulback and DMS . However, the decisions in those cases were made by the agreement of counsel without full argument ( Kaulback , at para. 24 ; DMS , at para. 17).

It is my view that the application of the 30-month presumptive ceiling to cases that return to provincial court for trial following re-election by an accused either before or during a preliminary hearing is contrary to the plain language used in Jordan , which I am bound to follow. I therefore conclude that the applicable presumptive ceiling of delay in this case is 18 months. B. Total Delay [ 18 ] The total delay in this case from the date the Information was sworn to the end of the second trial is 737 days. C.

Defence Delay [ 19 ] As stated previously, defence delay has two components: 1) “delay waived by the defence”; and 2) “delay caused solely by the conduct of the defence” ( Jordan , at paras. 61 and 63 ).

i) Delay waived by the Defence [ 20 ] A waiver of delay by defence can be explicit or implicit, but in either case must be clear and unequivocal ( Jordan , at para. 61 ). On October 12, 2017, a Legal Aid lawyer appeared for Mr. Springett and his two co-accused. The lawyer advised the Court that Legal Aid was “still in the process of discerning conflicts” and asked that the matter be adjourned to November 9, 2017.

The lawyer specifically stated that adjournment should be noted as a “defence request” as “some of these matters date back to June.” While the word “waiver” is not specifically used, a waiver of delay by the defence can be implied from the fact of the request was made by defence counsel in conjunction with an acknowledgement of the length of the proceedings to that date. The time between October 12, 2017 and November 9, 2017 (28 days) counts as a defence waiver of delay. ii) Delay Caused by Defence Conduct [ 21 ] This second component of defence delay is delay caused solely by the conduct of the defence.

The only deductible defence delay is that which: 1) is solely or directly caused by the accused person; and 2) flows from defence action that is illegitimate. Illegitimate defence conduct encompasses both substance and procedure and extends to both acts and omissions. ( R v Cody , 2017 SCC 31 , at paras. 30 , 32 and 33). [ 22 ] I have considered the following time periods that the Crown argues are attributable to defence delay: • July 19, 2017 to August 2, 2017 (14 days) - Mr. Springett first appeared in Provincial Court on July 19, 2017.

He was released with the consent of the Crown and his matter was adjourned to August 2, 2017, to allow him to seek counsel. This period of time is not attributable to defence delay as it was a reasonable and legitimate request by Mr. Springett to exercise his Charter protected right to counsel and a fair trial. • August 2, 2017 to October 12, 2017 (71 days) - Mr. Springett’s second court appearance occurred on August 2, 2017. On that date, the Court was advised that Mr. Springett qualified for Legal Aid, who was requesting the matter be adjourned to October 12, 2017.

Regardless of whether an accused is represented by Legal Aid or private counsel, a reasonable amount of time is required for defence counsel to obtain and review disclosure, as well as to provide advice to their client and seek instructions. In my view, 71 days is not an unreasonable amount of time for all of this to happen in relation to allegations of drug trafficking involving two co-accused.

I therefore conclude that this period of delay is not attributable to the defence. • June 19, 2018 to July 3, 2018 (14 days) - The preliminary inquiry scheduled to begin on June 19, 2018, did not proceed on that date as one of the co-accused resolved their matters by way of guilty pleas and Mr. Springett and the remaining co-accused indicated their preference to be tried in Provincial Court. The matter was adjourned to July 3, 2018 to set trial dates.

The Crown contends that failing to apply the 30-month ceiling in the circumstances of this case would “allow for a loop-hole in the Jordan frame-work which would permit an astute accused person to simply elect to proceed in the Court of Queen’s Bench, set a preliminary hearing date, push the timing of the proceedings against the 18 month presumptive ceiling, and when the moment is right, re-elect to provincial court” thereby creating grounds for a Charter application. The Crown’s argument fails in two respects: first, it is apparent from the transcript that Mr.

Springett was not using re-election to manipulate the system as his preferred mode of trial from the outset was the Provincial Court; second, scheduling a trial is a necessary step in the criminal process whether a preliminary inquiry

proceeds or not. If the Crown was concerned about delay because of the lower presumptive ceiling, then it was open for them to ask for a waiver of delay in exchange for providing consent to re-election ( Jordan , at para. 62 ). I therefore conclude that this period of time is not attributable to defence delay. • July 3, 2018 to November 14, 2018 (134 days) – On July 3, 2018, Mr. Springett and the remaining co-accused appeared in Court for the purpose of setting trial dates on November 14 and 15, 2018.

There is no evidence before the Court to suggest that the selection of a trial date was in any way delayed by the defence. • The adjournment between November 15, 2018 and December 10, 2018 (25 days) was made at the request of Mr. Springett’s lawyer at the conclusion of the Crown’s case to prepare argument on the voir dire . As the issue on the voir dire, the admissibility of data extracted from a Blackberry Bold that the Crown alleged belonged to Mr.

Springett, would or should have been apparent to defence counsel from reviewing the disclosure and, as such, the Defence could reasonably have come prepared to argue the issue at trial. Accordingly, I find that 25 days arising from this adjournment is deductible defence delay. • February 19, 2019 to February 26, 2019 (7 days) – The parties appeared in court on February 19, 2019, to set a date to have the matter brought back before the trial judge.

Although defence counsel indicated that she was requesting the adjournment, the adjournment was clearly necessary and unavoidable due to the case manager not having access to the trial judge’s schedule. [ 23 ] Accounting for defence waiver of delay (28 days) and delay caused by defence conduct (25 days), the total delay in this case is 684 days. As the period of delay exceeds the 18-month ceiling, it is presumptively unreasonable, and it falls to the Crown to demonstrate exceptional circumstances. D.

Exceptional Circumstances [ 24 ] The Crown argues that the declaration of a mistrial on March 27, 2019, was an “exceptional circumstance” as contemplated by the Supreme Court of Canada in Jordan and submits that the 119 days between March 27, 2019 and July 24, 2019, should be deducted from the total delay, which has been previously calculated to be 684 days. [ 25 ] Mr.

Springett concedes that the declaration of a mistrial is a “discrete event” that falls within the definition of an “exceptional circumstance”, but submits that something less than the full number of days should be deducted because of a failure on the part of the Crown or the justice system to mitigate the delay arising from the mistrial. [ 26 ] The Supreme Court of Canada in Jordan specifically noted that unforeseeable and unexpected developments at trial may amount to an exceptional circumstance, but also cautioned that “the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events” and, as such “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted” ( Jordan , at paras. 73 to 75 ). [ 27 ] Assuming that the entire period of 119 days between March 27, 2019 and July 24, 2019 is attributed to the presence of exceptional circumstances, the net delay (684 -119= 565 days) would still exceed the presumptive ceiling of 18 months.

Had it made a difference I would not have included the thirty-six days between February 19, 2019, and March 27, 2019, as an exceptional circumstance as the prolonged adjournment was due to scheduling difficulties arising from the limited availability of the trial Judge.

While this is not the fault of the Crown, it is delay attributable to the system, which might reasonably have been mitigated with the use of telephone appearances or other technology. [ 28 ] As the Crown has not met the onus of establishing the presence of exceptional circumstances justifying delay above the 18- month presumptive ceiling, the result is a stay of the proceedings. __________________ S. L. Metivier, J