R. v. Wood, 2020 MBPC 42

CITATION: R. v. Wood, 2020 MBPC 42 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) ) Wendy Friesen and Allison Kindle Pejovic for the Crown - and – ) ) ) Geordie Wood ) ) Scott Newman for the Accused ) ) ) Reasons for Decision ) Delivered: September 25, 2020 Rolston, P.J. Introduction [ 1 ] Geordie Wood is charged with assault causing bodily harm of a fellow inmate at Milner Ridge Correctional Centre after an incident occurred on February 25, 2019. Several other people are charged as a result of the incident.

Ultimately, a multi-accused trial is scheduled for October 2020, 17 months and 27 days after the charge was ultimately laid. [ 2 ] The Defence argues that Mr. Wood’s right to be tried within a reasonable time has been breached, notwithstanding the fact that the trial date is just below the 18 month presumptive ceiling set out in R. v. Jordan , 2016 SCC 27 . The Crown acknowledges that Defence counsel was diligent in moving the case to trial, but argues that the case did not take markedly longer than it should have. The Crown position is that the net delay due to Defence action amounts to less than 13 months.

The Court therefore must determine what amount of time should be attributed to Defence. If that net delay is under 18 months, the Court must consider whether the delay is markedly excessive in the circumstances, given that the Crown has conceded Defence diligence. Net Delay Calculation [ 3 ] In Jordan , the Court created a framework for determining the extent of the delay to be considered, and established whose burden it was to prove delay is unreasonable. At paragraph 105, the Court summarized: * There is a ceiling beyond which delay becomes presumptively unreasonable.

The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. * Once the presumptive ceiling is exceeded , the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable. * Below the presumptive ceiling , in clear cases, the defence may show that the delay is unreasonable.

To do so, the defence must 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. [ 4 ] The Court also directed judges to move away from the “finger pointing” involved with accounting for delay (see paragraph 107), and move towards an global assessment of delay (at paragraph 111):

…the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. While judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting process with a global assessment . This inquiry need only arise if the accused has taken meaningful and sustained steps to expedite matters. And above the ceiling, a s.11 (

b) analysis is triggered only where the Crown seeks to rely on exceptional circumstances. [emphasis added] With this structure and overarching principle in mind, the Court must begin by calculating the net delay by subtracting the delay caused by Defence from the total delay. [ 5 ] The Crown says that they should not bear responsibility for delay caused by the unavailability of co-accuseds’ counsel, as the Crown was ready to proceed early in the process. The Crown suggests that the Defence delay extends to all accused and therefore should be a collective calculation.

Following this logic, the Crown has presented a breakdown of the precise number of days that should be attributed to “Defence delay”: • November 29 to December 13, 2019 – this 14 day period represents the difference between when the Crown and court were available for a case management conference (CMC) to the date the CMC was actually booked when all counsel were available. • January 8 to 23, 2019 - this 15 day period is the time between the Crown and court availability for a second CMC to the actual second CMC. • June 25 to October 29, 2020 - this 126 day period represents the difference between a time when the Crown and court were available to the time the trial was ultimately set.

It should be noted that Mr. Newman, on behalf of Mr. Wood was available on the same date that the Crown was available such that this delay is entirely due to co-accused unavailability (see Affidavit of Mitchel Marriot, Tab K). The Crown therefore submits that since the delay of one is the delay of all, 155 days should be deducted from the total delay in this case. [ 6 ] The starting point for determining the issue of attributing co-accused delay should always begin with the premise that the right to a trial within a reasonable time is an individual accused’s right.

It logically follows that one accused cannot waive another accused’s right. The issue of co-accused delay was dealt with in R. v. Gopie, 2017 ONCA 728 . In that case, the Ontario Court of Appeal confirmed that an individualized approach should be employed in determining how delay is determined amongst co-accused (see paragraph 128). Furthermore, the court in Gopie made it clear that attributing delay caused by “actions or inactions of co-accused” is not in accordance with the approach of Jordan (at paragraph 136 ).

There is an exception to this principle that has emerged in Ontario that holds in situations where co-accused approach their defence as a collective, co-accused’s actions may be attributable to each other (see R . v. Albinowski , 2018 ONCA 1084 ). In this Court’s view, the reasoning set out in Albinowski is consistent with the principles set out in Jordan . That is to say, where an accused participates in delay by acceding to a co-accused’s delay tactics in silence, that accused cannot be said to be making a “sustained effort to expedite proceedings”.

Further, by the same token, in this Court’s respectful view, the Supreme Court’s pre- Jordan comments in R . v. Godin, 2009 SCC 26 , that asserts that counsel need not hold themselves in a constant state of availability can also fit within the spirit of Jordan (see also R. v. Dhaliwal , 2019 ONCJ 761 ). Jordan instructs the court to examine the entire actions of defence and avoid minute accounting. This same sentiment was echoed in R. v.

Cody , 2017 SCC 31 at paragraph 32 : Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted , may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.

Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11 (

b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. In this Court’s view, the question to be asked is not whether a defence lawyer was available on a particular date, but whether the whole of their actions demonstrates a sustained effort to move the case forward. This approach makes sense in an environment where due to evolving communication efforts, trial co-ordinators are more equipped to find earlier dates (sometimes after time passes) due to cases folding well in advance of trial.

Therefore, it is necessary here to examine the overall conduct of Defence to determine where to attribute delay. Did Defence demonstrate a sustained effort to move the case forward? [ 7 ] The record in this case illustrates that Mr. Wood’s counsel was working in an individual and diligent manner to bring his case to trial in an expeditious manner. There are several examples of how this was not a group defence where the respective accused were presenting a united front. Firstly, on August 26, 2019, Mr. Newman wrote to the Crown asking, “Can you advise whether or not the intention is for Mr.

Wood to be tried together with the co-accused, and if so, who is representing them?” (Affidavit of Mitchel Mariott, Tab A). This indicates that counsel were retained separately and were initially unaware of whether there would be a group prosecution. Next, on September 27, 2019, without knowing whether there would be a joint trial, Mr. Newman requested trial dates and gave an estimation of the time required for trial. Later in the day, after the Crown stated it would be a joint trial and indicated that she would contact other counsel for their position, Mr.

Newman on his own suggested a venue change to Winnipeg to accommodate the trial (Affidavit of Mitchel Mariott, Tab B). Also, it is apparent that each counsel responded to the Crown separately regarding the various potential dates. There was never a time when one counsel spoke for all (see Affidavit of Mitchel Mariott, Tab F, for an example of this). Most telling as to the nature of the relationship between the accused is an email exchange between Mr. Newman and the Crown on December 13 and 15, 2019, regarding a simple remand.

The Crown asked, “Can you confirm if co-accused are making the same request?” In response Mr. Newman carefully avoided speaking for other counsel but noted that “no one is pleading guilty” (Affidavit of

Mitchel Mariott, Tab I). The only time there is arguably a joint front presented by counsel occurred when Mr. Newman filed theapplication to transfer the trial to Winnipeg, and he indicated that it was a joint request. However, that joint request also included theCrown. At the end of the day, there is no evidence that indicates that defence counsel were working together towards a common goal intheir respective defences. [8] Furthermore, the problem associated with the Crown’s position of having the delay of all accused placed on Mr.

Wood’sshoulders can be illustrated by examining the record of the date setting process. Citing Jordan, the Crown argues that the delay shouldbe counted against the Defence from the time the Crown and Court are ready to proceed to the time the trial is actually set to proceed(Jordan, paragraph 64). On January 6, 2020, the Crown offered dates from the Court calendar starting June 11, 2020. However prior tothat, on December 13, 2019, Mr. Newman also had offered dates where he and the Court were available starting on July 28, 2020.

Thesewere consecutive dates which could have been set without having to get permission for non-consecutive dates. No one, including theCrown responded to Mr. Newman’s offer to set dates. The Court is left with the inference that the Crown was not available for the trialat that time. The point is that, if the Court were to accept the Crown’s argument, it would be prudent to accept that delay counts againstMr.

Wood when the Crown and Court are available, but not prudent to count delay against the Crown when the opposite is true. [9] A similar observation can be made with respect to the setting of case management dates. The Crown attributes a further 29days to Defence for not being available when the Crown and Court were ready to set case management dates. Email exchangesdemonstrate that it was Mr. Newman who first offered dates for case management to the Crown on October 2, 2019. At that time,Mr.

Newman had searched for dates on the court calendar and determined that he could accommodate a case management meeting for“9’s and 1’s in November”, meaning any 9:00 a.m. or 1:00 p.m. slot. Mr. Newman again offered his availability on October 10, 2019. While the available dates changed, Mr. Newman was also available on November 29, 2019. [10] As has been acknowledged by the Crown and illustrated above, Mr. Newman was the counsel who was driving the prosecutionand counsel for the co-accused forward towards trial. There is no reason to hang the delay of other accused on Mr.

Wood, in light of Mr.Newman’s singular diligence in moving forward. The record reflects that Mr. Wood’s counsel was actively moving the matter alongand was available during the same time period as was being offered by the Crown. While the available dates for both case managementand trials were in flux over the course of the lead up to setting dates, this is often the case in Manitoba Provincial Court as dates open updue to trials collapsing. In this Court’s view it would be an error to begin to parse out small amounts of time here and there and attributethose times in light of the record as it is in this case.

Doing so is contrary to the principled approach set out in Jordan. [11] Defence counsel raised an issue as to pre-charge delay. The initial information against Mr. Wood was declared in writing bythe informant in Lac Du Bonnet on April 24, 2019. The Information was accepted by signature of the Justice of the Peace in Winnipegon May 2, 2019. Section 8(2) of The Provincial Court Act authorizes an Information to be sworn by telecommunication. The Act issilent as to when the Information is deemed to be sworn.

Defence counsel did not dispute that the Information was not perfected until theJustice of the Peace endorsed the Information, but did point out that the onus under Jordan would have been on the Crown had theInformation been endorsed on April 24, 2019. In light of the manner in which Defence presented its argument, the Court will leave thequestion of whether the Information should be deemed to have commenced on the date the officer declared the Information or the datethat the Justice of the Peace endorsed the Information to another day.

Having said that, the practice of leaving an Information partiallylaid in this manner is not one that should be followed, if this is a regular occurrence. [12] Defence argues that the Court should consider the lost eight days between April 24 and May 2, 2019 as a part of the delayconsideration, notwithstanding that the onus for the Jordan application remains with the Defence. Pre-charge delay is different frompost-charge delay in that

section 11 of the Charter of Rights and Freedoms is only engaged once the Information is laid (see R. v.Kalanj, (SCC), [1989] 1 S.C.R. 1594). Pre-charge delay engages

section 7 of the Charter, in which case, the accusedmust demonstrate an abuse of process by showing that the accused is fair trial interests were affected by the delay or deprivation to thesecurity of the person. (See R. v. Hunt 2016 NLCA 61, dissenting opinion affirmed by the Supreme Court at 2017 SCC 25.) In thiscase, while it is tempting to focus on the time it took to perfect the Information because it spans the time frame that caused the Jordantimeline to strike midnight, such a focus is unfairly narrow. The fact is that the pre-charge delay here amounts to 65 days.

At first blush6 weeks seems excessive in light of the seemingly simplistic nature of the case. One would think that an incident that occurs in a jailsetting would be swift and easy, with charges inevitable. However, as pointed out by the Crown, the authorities were dealing with anuncooperative victim, several accused, a circumstantial video recording, and some phone recordings apparently with evidentiary value tothe case against the co-accused. A Crown opinion was called for in addition to the required collection of evidence. At the end of theday, 65 days is not an unreasonable pre-charge delay.

While it is unfortunate that the police or Justice of the Peace sat on thetransmission or signing of the Information leading to a critical change in onus for Jordan purposes, in the big picture, the investigationwas swift. Therefore, no weight should be attached to the 8 day delay in laying the Information. [13] The Court finds that the delay to be considered in this case amounts to 17 months, 27 days. Did the time to trial markedly exceed what is reasonable in the circumstances? [14] All parties agree that defence counsel has demonstrated a sustained effort to expedite proceedings in this case.

That being thecase, it is necessary to examine whether the case took markedly longer than it reasonably should have to get to trial. [15] Jordan offers guidance in assessing this factor at paragraphs 87 to 91. In

summary, the Court is to consider, “a variety offactors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expediteproceedings”. It is clear that the Crown took all necessary steps to expedite proceedings here and the two pertinent factors are as towhether this case qualifies as complex, and what local factors are at play. [16] As indicated, Mr. Wood’s case does not seem overly complex in nature. The substance of the case involves testimony fromseveral correctional officers aided by video surveillance. The gist of the case is as to whether Mr.

Wood can be identified and if so,whether the Crown can establish he was involved in the incident in the absence of an uncooperative victim. The complicating factorhere is the fact that the case has involved some telephone records against the co-accused, but more importantly scheduling issuessurrounding accommodating many lawyer’s schedules.

[17] Scheduling complexity for multiple accused is an aspect of case complexity as contemplated by Jordan in consideration ofwhether the time to trial markedly exceeds what is reasonable. The Supreme Court in R. v. Vassell, 2016 SCC 26 noted at paragraph 6: …delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding whatconstitutes a reasonable time for trial. This sentiment was also reflected in Jordan at paragraph 77, where the Court alluded to multi-accused proceedings as addingcomplexity. The fact is that more accused means more lawyers.

More lawyers means more time for examination of witnesses, and moreissues to litigate. These increased aspects require more court time for more people. Accommodating multiple schedules takes on ajigsaw puzzle like dilemma for those trying to find trial and case management time. The question is as to what point these complexitiesoverbear the system and result in a trial that is markedly unreasonable. [18] In Jordan, the Supreme Court directed trial judges to use the knowledge they have as to their jurisdiction in considering thereasonable time requirements.

At the same time, the Court must be mindful that an evidentiary basis must be established in order toconsider the local conditions (see R. v. Poperechny, 2020 MBCA 81). Defence counsel referred this Court to R. v. Perreault, 2020ONCA 580, which partially stands for the premise that gaps in trial availability due to judges attending educational programs is asystemic issue not an exceptional circumstance. There is no evidence before the court in this case that a delay occurred due to reducedjudicial or court resources.

Therefore, the Court must operate on the basis that the dates provided in evidence are the dates available in afully functioning Provincial Court in Manitoba. [19] The record reflects that as of the case management meeting held on December 13, 2019, with Judge Harvey (which wasapproximately seven months from the time the Information was sworn), all of the pretrial process was complete and a trial was ready tobe set (see Affidavit of Mitchel Mariott, Tab G). [20] In Manitoba, there is an understanding that multiple day trials are to be set on consecutive days unless a judge has givenpermission to set non-consecutive days.

The setting of non-consecutive days for trial while sometimes necessary, creates additionalworkload for judges and lawyers as everyone is required to get back up to speed as to the case at hand. The potential for error increaseswhen judges have multiple continuations threaded into busy dockets. For this reason, consecutive days are preferred where an accused’sright to trial within a reasonable time can be respected.

As of December 13, 2019, there were only four consecutive days available fortrial to be set in January 2020, (which was too soon to have subpoenas served) and July 28 to 31, 2020 (the dates suggested by Mr.Newman). The next string of consecutive dates was not until December 2020. Therefore the delay in dates for 4 consecutive days was afurther 7 ½ to 12 months. When one examines the non-consecutive possibilities from the court calendar (see Affidavit of MitchelMariott, Tabs J and K), four non-consecutive, but reasonably grouped dates were available in every month after June 2020.

Therefore,dates could have been set as early as 6 months from the date counsel were ready to proceed and counsel had options through the summerand into fall 2020. [21] This Court has already acknowledged that it is unrealistic to expect counsel to be perpetually available. In this Court’s view, theGodin principle still has a place in post-Jordan jurisprudence. That being the case, the same principle must apply to the co-accused. That fact inevitably leads to the reality recognized in Vassello. In Jordan, the court built in the standards set in R. v.

Morin, (SCC), [1992] 1 S.C.R. 771 that 8 – 10 months is reasonable institutional delay in Provincial Court (see Jordan, paragraph 52). As ofDecember 13, 2019, the date at which all counsel were ready to proceed, a further 8 to 10 months would result in trial dates in August toOctober 2020 using the Morin calculus. Interestingly, that calculus accords with what was available in this case. [22] The test that this Court must consider pursuant to Jordan is whether the trial date markedly exceeds what is the reasonable timerequirements for this case.

Morin considered notional institutional delay dealing with one accused. At the end of the day, where thecourt must accommodate the schedules of many lawyers, dates in the realm of the upper end of what was contemplated in Morin are notunreasonable, and certainly not markedly outside of what is reasonable. [23] Accordingly, notwithstanding the valiant efforts of Defence counsel to move this matter along and the excellent submissions onbehalf of his client, the application of Mr. Wood is dismissed. “Original signed by:” Rolston , P.J.