R. v. J.B.S., 2018 BCPC 384

Citation: R. v. J.B.S. 2018 BCPC 384 Date: 20181217 File No: 34820-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.B.S. RULING ON APPLICATION OF THE HONOURABLE JUDGE P. D. WHYTE Counsel for the Crown: J. Dufour Counsel for the Defendant: A. Zipp Place of Hearing: Williams Lake , B.C. Dates of Hearing: March 22, November 13, Dec. 06, 2018 Date of Judgment: December 17, 2018 Ruling on s. 7, 11(

b) and 11(

d) Application [ 1 ] J.B.S. (the “Applicant”) stands charged that on or about the 16 th of April, 2017, he did sexually assault R.C., contrary to

section 271 of the Criminal Code . The information was sworn on June 6, 2017. The Applicant had two prior trial dates that did not proceed, due to issues related to Crown disclosure. The projected date for the conclusion of trial is now December 20, 2018, resulting in a total

delay of 563 days from the date the information was sworn. [ 2 ] The Applicant has applied for a judicial stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) on the basis that his right to trial within a reasonable time, guaranteed by s. 11(

b) of the Charter , has been infringed. When this application commenced on March 22, 2018, the delay was below the 18 month presumptive ceiling for unreasonable delay established in R. v. Jordan , 2016 SCC 27 (“ Jordan ”) .

Now that the third trial dates are confirmed, that delay exceeds the ceiling by some 23 or so days. [ 3 ] If the total delay, once defence and other delay is subtracted, does not exceed 18 months, the Applicant argues that the matter should nonetheless be subject to a judicial stay of proceedings, as the defence has taken meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case has taken markedly longer that it reasonably should have: Jordan , para. 48 . [ 4 ] Additionally, the Applicant has alleged breaches of his s. 7 and 11(

d) rights, on the basis of what he says was the Crown’s failure to promptly meet its disclosure obligations. The Applicant says the Crown scheduled trial dates without knowing the outcome of further DNA testing it sought after an initial DNA analysis did not provide evidence of the Applicant’s DNA on tested exhibits. The Crown argued that the defence should be prepared to defend the matter regardless of whether the further DNA testing resulted in inculpatory evidence. Further, it is alleged that the Crown refused to advise which exhibits were subject to further testing.

The Applicant argues that the Crown engaged in “moving the goalposts” in such a fashion that made it impossible for him to prepare to meet the Crown’s case. Such conduct, it is argued, is a breach of his fundamental right to a fair trial, and to make full answer and defence to the charge. [ 5 ] The Crown opposes the relief sought by the Applicant, for a variety reasons. Firstly, the Crown submits that it should not be responsible for delay that was occasioned by the defence’s requests for disclosure, and need to retain its own expert. It was for the defence to make requests for disclosure in a timely manner.

The defence should not benefit when it scheduled trial dates knowing that the further disclosure would be unlikely to be available in time. In essence, the defence should have been aware of the need to retain its own expert early on in the process. In any event, the further disclosure, while late, did not implicate the Applicant, so it was of little moment to either the prosecution or defence. [ 6 ] The Crown further states it has never withheld disclosure from the Applicant. It requested the documentation enumerated in the defence correspondence, but it could not disclose what it did not have.

The Crown argues that the appropriate remedy for any delays is an adjournment of trial, not a judicial stay of proceedings. [ 7 ] Finally, the Crown says that an intervening factor that must be considered was the withdrawal from the record of the Applicant’s first counsel. This event resulted in significant delay that should not fall at the feet of the Crown. [ 8 ] When defence and other delay is subtracted, the Crown argues that the resulting delay is not unreasonable, given the time requirements of the case. Therefore a stay of proceedings should not be available to the Applicant.

Timeline [ 9 ] I reference the Record of Proceedings attached as Exhibit “A” to the October 31, 2018 Affidavit of C.P., tendered as Exhibit 6 on the application. [ 10 ] Although the charge in this case arose from an alleged event from April 16, 2017, it was not until June 6, 2017, that that information was sworn. The Applicant’s first appearance was the next day, June 7, 2017; Mr. Los appeared as counsel on this date. The matter was adjourned to June 12, 2017, for a defence application to vary bail.

The Crown consented to the application, and the matter was adjourned to June 14, 2017, for arraignment. [ 11 ] On June 14, 2017, Mr. Los appeared and the matter was arraigned. Mr. Los submitted that, from the earliest instance, the Applicant asserted his innocence and instructed him to seek a swift trial. The first trial dates were scheduled for December 14-15, 2017, (the “First Trial Dates”).

The defence arraigned the matter seven days after the first appearance, and 59 days from the date of the alleged offence. [ 12 ] On or about August 3, 2017, the RCMP received an August 2, 2017 Forensic Science and Identification Services Laboratory Report (the “First DNA Report”). This report indicated that no male DNA had been found on a vaginal swab administered to the complainant. [ 13 ] The First DNA Report was not disclosed to the Applicant’s counsel until November 3, 2017; 42 days before the commencement of the first trial (Exhibit 4: March 19, 2018 Affidavit of Christopher Los, page 1).

No explanation for the 90 day delay in delivering the First DNA Report has been provided. [ 14 ] On November 19, 2017, Mr. Los wrote to the Crown, advising of the necessity to secure the services of an expert to analyze the report results. Mr. Los advised the Crown that the process would not likely be completed in time for the First Trial Dates, and consequently an adjournment would be required. Relying upon R. v. Manjra , 2009 ONCA 485 , Mr. Los argued that he could not rely on DNA evidence without an expert to interpret it. [ 15 ] The defence consulted with an expert regarding the First DNA Report.

As a result of that discussion, Mr. Los’s November 19, 2017, correspondence also requested various further items of disclosure, consisting of laboratory notes and other ancillary laboratory documents. Mr. Los also asked 1) why no semen testing was performed; and 2) whether any other swabs collected were submitted for analysis. [ 16 ] On December 4, 2017, Ms. Pace for the Crown responded that she was attempting to secure the information requested by Mr. Los. She agreed that an adjournment seemed likely in the circumstances, and would not be opposed by the Crown (Exhibit 4, page 19).

[ 17 ] On December 13, 2017, Crown and defence appeared before Keyes, J. for the defence application to adjourn the trial (the “First Trial Adjournment Application”). The Crown consented to the adjournment. It was understood that the information in the First DNA Report was not straightforward, and required further consideration by an expert. The matter was adjourned to January 17, 2018, to fix new trial dates. [ 18 ] On January 16, 2018, Ms. Pace for the Crown emailed Mr.

Los to advise that she had requested further DNA testing of other items seized during the investigation (the “Second DNA Report” - Exhibit 4, Affidavit #1 of Christopher Los, dated March 19, 2018, page 17). She indicated that the results of that testing were expected around March 20, 2018. [ 19 ] The second trial was scheduled for March 20 and 22, 2018 (the “Second Trial Dates”). Consequently, it was unlikely from the start that the further disclosure requested by Crown Counsel would be available prior to the Second Trial Dates. [ 20 ] The ancillary documents requested by Mr.

Los in his November 19, 2017, correspondence were received by the defence on February 20, 2018. Those documents totaled 356 pages. [ 21 ] The Second DNA Report, dated February 27, 2018 was in the hands of the Crown by March 12, 2018. The Second DNA Report was disclosed to defence on March 12, 2018, eight days before the commencement of the Second Trial Dates (Exhibit 2, March 22, 2018 Affidavit of C.P., page 3). Ms. Dufour, now acting for the Crown, advised Mr.

Los that, as no male DNA was found on the complainant’s underwear, the Crown did not intend to call an expert. [ 22 ] The matter came before me on March 20, 2018, as a defence application to adjourn the trial (the “Second Trial Adjournment Application”). The Crown opposed the adjournment on the basis that the Second DNA Report did not disclose the presence of male DNA on the exhibits subjected to further testing. Therefore, there was nothing for the Crown to rely upon, and the absence of DNA could only help the defence case. [ 23 ] Mr.

Los advised he requested a variety of ancillary documents related to the Second DNA Report on March 19, 2017, and had not received them at the time of the Second Trial Adjournment Application. Additionally, Mr. Los, again relying on R. v. Manjra , submitted that he required an expert opinion to interpret the results, even where there is an absence of inculpatory evidence. [ 24 ] The Second Trial Adjournment Application was successful. I pause to note parenthetically, as I did at the time the trial was adjourned, that this was not a case where the Crown refused to disclose relevant material in its possession.

Rather, at the time of the adjournment application, it did not have the material in its possession, and could not disclose what it did not have. [ 25 ] It was understood at the time of the Second Trial Adjournment Application that Mr. Los would be leaving Williams Lake to pursue employment elsewhere. Despite this, Crown and defence corresponded about scheduling a third trial. On April 5, 2018, Mr.

Los, in response to a suggestion that the trial could be scheduled for September 17, 18 and 20, 2018, stated there was “no point in scheduling continuations without new counsel on board…” (Exhibit 6: October 31, 2018 Affidavit of C.P., page 6). Consequently, these dates were not scheduled. [ 26 ] A review of the Record of Proceedings found at pages 2-3 of Exhibit 6 indicates that Mr. Los made a final appearance on the record on April 11, 2018. The matter was adjourned to May 31, 2018, to fix new trial dates. [ 27 ] On May 31, 2018, Mr. Zipp appeared by telephone as new counsel for the Applicant.

The matter was scheduled on that date for a continuation of the delay application commenced on March 22. Mr. Zipp was unavailable, and the continuation of the application was adjourned. [ 28 ] In a May 31, 2018, email to Crown Counsel, Mr. Zipp acknowledged that the third trial dates had been scheduled for December 17, 18, and 20, 2018 (the “Third Trial Dates”). There was no mention in the correspondence that the September 2018 trial dates were available for Mr. Zipp. However, a November 14, 2018 Scheduling Notice has a notation next to the September 2018 dates that defence counsel was unavailable.

This is unsurprising, given that Mr. Zipp was not on the record for nearly two months after those dates were first offered. [ 29 ] On Friday, July 20, 2018, Mr. Zipp emailed the Crown and Judicial Case Manager to advise that his

schedule had opened up, and he was now available to continue the trial commencing Monday, July 23, 2018. Mr. Zipp advised that he was available the entire week of July 23, 2018. [ 30 ] The Crown responded in an email the same day, advising that Crown with conduct of the trial was unavailable for the week of July 23, and it was unclear whether the witnesses could be notified in time to

schedule the trial. [ 31 ] Mr. Zipp in his able submissions stated that he was discharging his duty to attempt to minimize delay by making himself available earlier than the Third Trial Dates. However, given the timing of the email, it was unsurprising that the matter could not continue during the week of July 23, 2018, as evidenced by the Crown’s emailed reply of July 20, 2018. [ 32 ] This matter has been adjourned on at least two occasions due to the Applicant’s non-attendance. On May 31, 2018 the Applicant was not present during Mr. Zipp’s telephone appearance. On October 31, 2018, Mr.

Zipp advised that he had learned from the Native Courtworker that the Applicant’s grandmother had passed away. The family had left two days prior to the appearance to attend her funeral service. [ 33 ] As a consequence, submissions on this application were not completed until December 6, 2018, 11 days before the trial was scheduled to commence. [ 34 ] As indicated, the total delay from June 6, 2017, to December 20, 2018, is 563 days , or approximately 18 months and 23 days . Canadian Charter of Rights and Freedoms (the “ Charter ”)

[35] The sections of the Charter engaged by this application are as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time; (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Sections 7 and 11(d): [36] As I understand it, the Applicant’s argument regarding ss. 7 and 11(

d) has two parts. Firstly, he argues that the Crown has notdisclosed documents essential for the Applicant to make full answer and defence to the charge. Secondly, the Applicant says the Crownhas engaged in conduct that has made it impossible to prepare the case against him. [37] The Applicant did not spend a great deal of time arguing this part of the application. The majority of the argument was focusedon that Applicant’s allegation of unreasonable delay in this case. [38] It is undisputed that the Crown is required to disclose the “fruits of the investigation” in its possession or control.

It is not,however, required to disclose what it does not have or what does not exist: see R. v. Stinchcombe at 755(2). [39] Late disclosure should only result in a stay of proceedings in the clearest of cases, as a last resort remedy to be taken after allother acceptable avenues of protecting the accused’s rights to a full answer and defence are exhausted: R. v. IWS, 2013 ONSC 4323(“IWS”) at paras. 15 and 31.

This is so because the ultimate remedy of a stay of proceedings is reserved for circumstances where theabuse of process is so egregious that prejudice to the accused cannot be remedied by any lesser measure. [40] As indicated, the Crown has not refused to disclose the documents sought by the Applicant. This is thus not a case of Crownnon-disclosure; it is a case of Crown late disclosure. [41] Having said so, the late release of the First DNA Report, and the Crown’s decision to request additional DNA testing, resultedin significant delays. [42] In R. v.

O’Connor (SCC), [1995] 4 SCR 411 (“O’Connor”), the Supreme Court of Canada adopted a two parttest to be used when a court is tasked with determining whether a stay of proceedings is the appropriate remedy for an abuse of process incases of Crown non-disclosure: 1. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and 2. no other remedy is reasonably capable of removing the prejudice.

O’Connor at para. 75. [43] Had the matter proceeded on the Second Trial Dates without the Applicant having had an opportunity to review all of thedocuments ancillary to the Second DNA Report, the Applicant’s right to a fair trial would most certainly have been prejudiced. [44] The delay prior to the Second Trial Date resulted at least partially from the Crown’s decision to test further exhibits, a decisionit made on or about January 16, 2018.

Given that the ancillary documents pertaining to the First DNA Report were not received untilMarch 12, 2018, it is highly unlikely that the matter could have proceeded to trial on the Second Trial Date in any event. [45] The delay occasioned by the Crown’s late disclosure, in my view, does not result in a violation of the Applicant’s s. 7 or 11(d)rights in the instant case such that a stay of proceedings is warranted. Rather, the appropriate remedy was the adjournment. [46] Undoubtedly the delay occasioned by the adjournment of the Second Trial Date resulted in prejudice to the Applicant.

Indeed,such prejudice is presumed, as discussed in Jordan and R. v. Cody 2017 SCC 31 (“Cody”). In my view that prejudice is properly assessedas a potential s. 11(

b) breach, and not under s. 7 or 11(d). [47] For these reasons, I dismiss this part of the application.

Section 11(b): The Jordan Framework [48] Jordan created a presumptive ceiling of 18 months from the charge to the end of the actual or anticipated trial for matters heardin the provincial court. Defence-waived or defence-caused delay does not count in calculating whether the presumptive ceiling has beenreached: Jordan, para. 49. [49] Defence delay has two components: delay waived by the defence both explicitly and implicitly; and delay caused solely by theconduct of the defence. Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

It remainsopen to trial judges to find that other defence actions or conduct have caused delay: Jordan, paras. 60-65. [50] If, after defence delay is deducted from the total delay, the remaining delay exceeds the 18 month ceiling, it is presumptivelyunreasonable. The Crown may rebut this presumption by demonstrating exceptional circumstances. Exceptional circumstances are

those which are outside the control of the Crown in that they are reasonably unforeseen or reasonably unavoidable and the Crown cannotreasonably remedy the resulting delays once they arise. The determination of whether circumstances are “exceptional” will depend onthe trial judge’s good sense and experience: Jordan, paras. 66-71. [51] The seriousness or gravity of the offence cannot be relied on by the Crown to discharge its burden to justify a delay that exceedsthe ceiling.

A chronic lack of institutional resources cannot be relied on, nor can an absence of prejudice: Jordan, para. 81. [52] A delay may still be unreasonable even where it falls below the presumptive ceiling. An accused must establish that (1) he orshe took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longerthan it reasonably should have. Stays beneath the ceiling should be granted only in clear cases: Jordan, paras. 82-83. [53] Courts ought not to undertake a precise calculation of delay, as was the common practice under Morin.

Rather, trial judgesshould adopt a “bird’s-eye view of the case”: Jordan, para. 91. [54] The Applicant argues his application on two fronts. [55] Firstly, he says the total delay from the laying of the charge to the projected end of trial is 563 days, and therefore exceeds thetimeline established in Jordan. The delay is presumptively unreasonable, and the Crown is unable to rebut the presumption.

Thus, theappropriate remedy is a stay of proceedings. [56] Secondly, the Applicant argues that, if the overall delay is subject to subtraction due to “defence delay” such that the delayremaining is less than 18 months, the matter should nonetheless be subject to a stay of proceedings.

This is so because the Applicanttook meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than itreasonably should have. [57] In order to determine the next step in the analysis, it is necessary to calculate what, if any, delay in this case was either causedor waived by the defence. Additionally, an analysis is required to determine what, if any, delay might be attributed to exceptionalcircumstances.

Calculation of Delay: [58] Although there was some delay from the time of the alleged event to the swearing of the information, I do not consider any ofthis “pre-charge delay” in the calculation. Pre-charge delay has no effect on the right to be tried within a reasonable time: R. v. Kalanj, (SCC). See also R. v. Morin, (SCC).

Swearing of the Information to the Application to Adjourn the First Trial Dates: 191 Days [59] The time from the laying of the charge to the first trial date is, in my view, institutional delay. [60] The Crown argued that the Applicant’s counsel ought to have been aware that a “rape kit” had been administered to thecomplainant. This should have triggered in the Applicant’s mind the need to consider retaining an expert to analyze any evidence thatmight have resulted.

I understood the Crown’s position to be that this obligation existed prior to the Crown’s disclosure of the FirstDNA Report. [61] I reject this line of reasoning. The Crown and/or RCMP had the First DNA Report in their possession as early as August 3,2017. For reasons that remain unclear, the First DNA Report was not disclosed until November 3, 2017. The late disclosure of thisreport ultimately led to a consent adjournment of the First Trial Date. I deduct no time as defence delay.

Adjournment of the First Trial Date to the Adjournment of the Second Trial Dates: 97 Days [62] The Crown agreed to the Second Trial Dates, scheduled for March 20th and 22nd, 2018. They did so despite not having in theirpossession the ancillary documents underpinning the First DNA Report. [63] Approximately eight weeks before the Second Trial Date, the Crown decided to conduct further testing of some of the exhibitsseized during the investigation. There was nothing inherently wrong in the Crown doing so. It was in keeping with the Crown’s role asministers of justice to search for the truth of the matter.

However, the decision contributed to further delay. [64] The documents ancillary to the First DNA report were received by the defence on February 20, 2018, four weeks before theSecond Trial Date. The Second DNA Report, however, was not disclosed to the defence until March 12, 2018, eight days in advance ofthe Second Trial Date. [65] I reject the Crown’s argument that, since the Second DNA Report did not disclose DNA attributable to the Applicant, it had noevidentiary value. I accept the Applicant’s submission that the meaning to be ascribed to an absence of DNA required expertassessment.

An expert could not reasonably be commissioned in advance of the Second Trial Date, given the timing of the disclosure ofthe Second DNA Report. Further, that report resulted in requests for various documents ancillary to the report, which were not availablebefore the Second Trial Date. [66] I subtract no defence delay from the period between the adjournment of the First Trial Dates, and the adjournment of theSecond Trial Dates. March 21, 2018 – December 20, 2018: 275 Days [67] It was clear at least as of April 5, 2018 that Mr.

Los would no longer be acting for the Applicant in his eventual trial, as he wasleaving the jurisdiction to pursue employment elsewhere. On this basis, Mr. Los declined the Crown’s suggestion that the trial be

scheduled for September 17, 18 and 20, 2018. [ 68 ] I find that, as of April 5, 2018, the Crown and the court were available to

schedule the trial of this matter. But for Mr. Los’ decision to be removed as counsel of record, there is no principled reason to believe the matter would not have concluded by September 20, 2018. This is, in my view, an example where “…the court and the Crown are ready to proceed, but the defence is not”: Jordan , para. 64 . [ 69 ] However, it is to be remembered that the Second Trial Dates were adjourned on the basis that the Crown had not met its disclosure obligation.

Had the Crown supplied the Second DNA Report and its ancillary documents in advance of the Second Trial Dates, it is reasonable to conclude that the trial would have completed in March 2018. Defence delay is deducted only when that delay is solely or directly caused by the accused person: R. v. Cody , para. 30 . [ 70 ] The instant matter is complicated by the fact that Mr. Los got off the record, and declined to

schedule the trial dates offered in September 2018. While the delay occasioned by the adjournment of the Second Trial Dates was caused by disclosure issues, the scheduling of the Third Trial Dates was further delayed because of issues unrelated to disclosure. Mr. Los declined to

schedule the September 2018 trial dates on the basis that he did not know the

schedule of defence counsel who had yet to be assigned. That decision resulted in a delay in the scheduling of the third trial. [ 71 ] This circumstance can be distinguished from that in R. v. Cootes , 2018 BCSC 1486 (“ Cootes ”) . Cootes was a Crown appeal of the trial judge’s decision to direct a stay of proceedings due to unreasonable delay. The Crown in Cootes applied to adjourn the first trial dates on the basis that the complainants, who were fishermen, did not want to attend trial during their fishing season ( Cootes , para. 4 ).

Crown accepted responsibility for the delay occasioned by the unavailability of its witnesses. Trial dates for the second trial were offered, but defence counsel was unavailable due to scheduling conflicts. [ 72 ] When the matter was finally scheduled, the total delay was over 20 months. The defence successfully applied for a judicial stay of proceedings on the basis of unreasonable delay. [ 73 ] In Cootes , the second trial dates were not scheduled due to defence counsel’s unavailability following a Crown initiated adjournment application. It could not be said that the adjournment was caused by the defence.

Nor was defence action viewed as anything but legitimate. Ultimately, the Court attributed the delay caused by the Crown adjournment, but affected by defence counsel’s unavailability, as not attributable to the defence ( Cootes , para. 43-44 ). [ 74 ] Here, the circumstance is nuanced. The delay was initially occasioned by the disclosure issue. However, the delay was compounded by the fact that the September 2018 trial dates could not be scheduled because there was, effectively, no defence counsel with whom the dates could be scheduled. Mr.

Los could have scheduled those dates and confirmed who, if anyone, might be available to conduct the trial. He chose not to do so, and that decision exacerbated the delay that resulted from the adjournment of the second trial. [ 75 ] The Applicant argued that he did not choose for Mr. Los to go off the record. Therefore, it would be inappropriate to attribute this, or any, delay occasioned by Mr. Los’ departure, to “defence caused delay”. [ 76 ] While the Applicant may not have instructed Mr.

Los to remove himself as counsel of record, neither can the Crown be said to have done anything that caused that to occur. [ 77 ] Attributing delay in cases where counsel withdraw, or are removed, from the record has been the subject of a number of decisions. [ 78 ] In R. v. Pelletier , 2016 BCSC 2496 (“ Pelletier ”) , the court determined that delay resulted from the accused discharging two counsel was to be subtracted as accused caused, or defence delay. The court accepted Crown’s submission that s. 11(

b) applications are about state action. Despite the fact that the decision to discharge counsel may have been justified, this was properly considered defence delay: Pelletier , para. 40 . [ 79 ] R. v. Balogh 2018 BCSC 180 (“ Balogh ”) was a Crown initiated appeal of the trial judge’s decision to stay charges against the respondent due to unreasonable delay. The respondent was prosecuted under the Income Tax Act for under-reporting his income. Approximately one month prior to the commencement of a voir dire , counsel for the respondent got off the record.

A number of other circumstances resulted in further delays, including the unavailability of counsel and the judge. [ 80 ] The court noted that, in a post Jordan world, defence counsel can no longer expect trial dates to be moved to accommodate defence counsel’s future trial commitments, particularly where the Crown and the court are ready to proceed: Balogh , para. 57 ; see also R. v. Williamson , 2016 SCC 28 , paras. 21-22 . [ 81 ] In R. v. Baron 2017 ONCA 772 (“ Baron ”) , the Ontario Court of Appeal was tasked with determining the calculation of delay where defence counsel was removed from the record.

The appellant challenged the trial judge’s ruling that the 59½ months of delay in that case was not unreasonable. The appellant’s original application proceeded under R. v. Morin ; his appeal invoked an analysis under the Jordan framework. [ 82 ] Baron was plagued by various delays, part of which was attributed to the fact that one counsel initially represented three accused. That counsel was eventually removed from the case, some 16 months after the charges were laid. [ 83 ] The Court of Appeal attributed the delay caused by the removal of counsel from the record as defence delay.

It was “…almost inevitable that a single lawyer could not represent all three accused persons in a large-scale fraud prosecution…” ( Baron , para. 57 ). Despite being a virtual inevitability, removal of counsel from the record set off a chain of events that led to significant delay, as the accused scrambled to find new counsel. As the Court of Appeal noted, none of this delay was attributable in any way to the Crown. [ 84 ] I find in the instant case that the September 2018 trial dates were not scheduled because of Mr. Los’ impending departure as the

Applicant’s counsel. I accept that the Applicant did not invite the departure. However, that does not result in a calculation of the entire delay occasioned by that event as Crown or institutional delay. A portion of it is either defence delay, or delay not fairly counted against the state, in the sense that it was an exceptional circumstance that lay outside the Crown’s control. It was reasonably unforeseen or reasonably unavoidable. Further, as Mr.

Los determined there was “no point” in setting further trial dates until new counsel was assigned, Crown could not reasonably remedy the delay that resulted: Jordan , para. 69 . [ 85 ] I conclude that, at the time Mr. Zipp came on the record as counsel, either the September 2018 trial dates were either no longer available, or Mr. Zipp was unable to accommodate those dates in his schedule. [ 86 ] I find that Mr.

Zipp was diligent in his attempt to call this matter ahead for trial on July 23, 2018, despite the fact that it was a practical impossibility that his suggestion could be implemented, given its timing. [ 87 ] I further find that Mr. Zipp scheduled the Third Trial Dates at a reasonably early opportunity, given that the delay application had been started, but not concluded, at the time those dates were scheduled. Some delay was inevitable as a result of the scheduling of the Third Trial Dates. Mr.

Zipp had to fix the trial dates in accordance with his and the court’s availability. [ 88 ] I reiterate, however: had Mr. Los not departed from the record, this matter would very likely have completed in September 2018, including the hearing of the delay application.

For that reason, I conclude that it would be unfair to allocate all of the delay from September 21, 2018 to December 20, 2018, as institutional delay. [ 89 ] It was thus a combination of Crown delay and defence delay, or delay due to an unforeseen circumstance that led to the delay between March 21, 2018, and December 20, 2018. [ 90 ] Having considered the need to analyze the matter from a “bird’s-eye” view rather than a precise calculation, I find it most appropriate to allocate this 275 day delay equally as Crown/institutional and defence/exceptional circumstance delay.

Total Calculation of Delay [ 91 ] With regard to the total delay in this case, I find as follows: 1. Of the 563 days of total delay, I deduct 137 days as delay occasioned by defence or an exceptional circumstance as defined in paragraph 69 of Jordan . This reflects half of the delay between March 21, 2018 and December 20, 2018. 2. The resultant delay is 426 days , or approximately 14¼ months. This delay is below the presumptive 18 month ceiling established in Jordan . 3. Where the delay falls below the presumptive ceiling, the defence bears the onus to 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) that the case took markedly longer than it reasonably should have. It must be remembered that stays of proceedings beneath the ceiling are granted only in the clearest of cases: Jordan , paras. 82-83 . The Defence Took Meaningful and Sustained Steps to Expedite the Matter [ 92 ] Here, a judge must consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible.

It is not sufficient for the defence to simply put on the record that it wanted an earlier trial date. The defence is required to act reasonably, not perfectly: Jordan , paras. 84-85 . [ 93 ] I find that for the most part the defence took meaningful steps to expedite the trial of this matter. Mr. Los arranged the earliest trial dates; he communicated his concerns promptly upon being furnished with the First DNA Report; and he explained the difficulties engendered by the Crown’s decision to seek further testing of exhibits. Mr. Zipp was diligent in informing the Crown when his

schedule opened up in hopes the matter might conclude sooner, although it had little effect, giving the timing. [ 94 ] The defence is required to act “reasonably”, not “perfectly”. I am satisfied overall that the defence has met their burden in this regard.

The Case Took Markedly Longer Than it Should Have [ 95 ] The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings: Jordan , para. 87 . [ 96 ] In considering reasonable time requirements of the case, trial judges should employ the knowledge they have of their own jurisdictions, including how long a case of that nature typically takes to get to trial: Jordan , para. 89 . [ 97 ] Determining whether the time the case has taken markedly exceeds what was reasonable is not a matter of precise calculation.

The court in Jordan expressly eschewed the kind of parsing of dates common under Morin in favour of a higher level, general analysis: Jordan , para. 91 . [ 98 ] The Crown described this matter as a “simple WD case” in a February 27, 2018 email to Mr. Los (Exhibit 4, Affidavit #1 of Christopher Los dated March 19, 2018). With respect, I disagree. Perhaps with the benefit of hindsight, so might the Crown. [ 99 ] The matter has become more complex than initially thought. There are two DNA reports, each of which require

interpretation by an expert, according to the Applicant. The ancillary documents underpinning each report require review. The first of these

documents totals some 356 pages. Despite the fact that neither the First DNA Report nor the Second DNA Report implicates the Applicant, he is of the view that an expert is nonetheless required to interpret what is to be made of this absence of evidence. This, in my view, takes the case out of the ambit of the simple and straight-forward. It injects at least a modicum of complexity. [ 100 ] When the first two trials were scheduled, the time estimate was two days. By the time the third trial date was scheduled, the estimate had increased to three days.

This may be a reflection of the complexity of the case, or the fact that the inclusion of a defence expert would require more time to be scheduled. Regardless, I view the case as having features that take it beyond the simplest or most straight-forward of prosecutions. [ 101 ] The Provincial Court of British Columbia’s March 31, 2018 Semi-Annual Time to Trial Report lists the average time to trial for 2-4 day criminal matters in Williams Lake as being eight months. Time to trial does not reflect when cases are actually set. Rather, it is an estimate of when court time would be available to

schedule a trial. I do consider the Semi-Annual Time to Trial Report in deciding whether this matter took markedly longer than it should have to complete. Conclusion [ 102 ] In balancing these various factors, I conclude that this is not a clear case where the reasonable time requirements have been markedly exceeded. The matter has taken longer to get to trial than the Applicant, the Crown or even the court may have wished.

However, it cannot be said that the result is a marked delay. [ 103 ] The Crown acted appropriately in disclosing the Second DNA Report upon receipt, despite being responsible for the delay occasioned by the commission of that report. The Crown was reasonably diligent in attempting to secure the earliest available trial dates for the third trial.

As with the defence, the Crown is not to be held to a standard of perfection: Jordan , para. 90 . [ 104 ] Finally, despite local considerations suggesting a three day matter is often accommodated within eight months, the case was complicated by its general nature, the departure of defence counsel and the Applicant’s non-attendance on at least two occasions.

These events had the cumulative effect of injecting further delay that does not fall at the feet of the Crown. [ 105 ] In all the circumstances, I find the defence has not met its onus to prove that the delay below the presumptive ceiling was unreasonable such that a stay of proceedings should follow. [ 106 ] For these reasons, I dismiss the application. _______________________ The Honourable Peter D. Whyte Provincial Court Judge