R. v. Eheler, 2019 BCPC 59

Citation: R. v. Eheler 2019 BCPC 59 Date: 20190130 File Nos: 62444-1, 62444-2, and 62444-3 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAYTON ARCHIE EHELER and MATHEW JORDAN THIESSEN ORAL RULING RE:

SECTION 11(

b) APPLICATION OF THE HONOURABLE JUDGE R. BROWNING Counsel for the Crown: J. Cramer Counsel for Accused C. Eheler : M. Nathanson Counsel for Accused J. Thiessen : J. Reveley Place of Hearing: Chilliwack , B.C. Dates of Hearing: October 23, 24, 2018 Date of Ruling: January 30, 2019

INTRODUCTION [ 1 ] THE COURT : Clayton Eheler and Mathew Thiessen were charged together with a co-accused Raymond Morrissey with unlawful possession of a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The offence was alleged to have occurred between November 18, 2014 and November 26, 2014. [ 3 ] On June 18, 2018, Mr. Eheler and Mr. Thiessen were convicted of the offence. Mr. Morrissey was acquitted. [ 4 ] Mr. Eheler and Mr.

Thiessen seek a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms on the basis of a breach of their right to be tried within a reasonable time, pursuant to s. 11(

b) of the Charter .

SUMMARY OF THE EVIDENCE [ 5 ] During the execution of a search warrant at a condominium unit located at 401 - 45615 Brett Avenue, Chilliwack, British Columbia on November 26, 2014, police arrested Mr. Eheler and Mr. Thiessen. Mr. Morrissey legally rented the unit. He was not present at the time of the search. [ 6 ] Subsequent to their arrest, both Mr. Eheler and Mr. Thiessen were released from custody without charge. (

i) Time from swearing of Information to arraignment - December 1, 2015 to June 8, 2016 - six months, eight days. [ 7 ] On December 1, 2015, an Information was sworn charging all three accused. Warrants for arrest were issued at that time. [ 8 ] On December 4, 2015, Mr. Eheler appeared in custody and was released on a recognizance with conditions. [ 9 ] On December 17, 2015, the initial disclosure package was provided to counsel for Mr. Eheler. Mr. Eheler made his first appearance in court after his release on January 5, 2016. On that date, Mr.

Eheler was adjourned to appear in court on January 26, 2016. [ 10 ] On January 4, 2016, Raymond Morrissey appeared in custody and was released on a recognizance with conditions. Mr. Morrissey was adjourned to appear in court in January 26, 2016. [ 11 ] On January 19, 2016, Mr. Thiessen appeared in custody and was released on a recognizance with conditions. Mr. Thiessen was adjourned to appear in court on January 26, 2016. [ 12 ] On January 7, 2016, an initial disclosure package was provided to counsel acting for both Mr. Thiessen and Mr. Morrissey, Mr. Beatch.

All accused appeared in court together for the first time by way of counsel designation on January 26, 2016. [ 13 ] By letter dated February 2, 2016, a second disclosure package was provided to counsel for Mr. Eheler, Mr. Nathanson, and counsel for Mr. Thiessen and Mr. Morrissey, Mr. Beatch. [ 14 ] All accused made appearances in court by agent on February 23, 2016, March 15, 2016, April 12, 2016, April 26, 2016 and May 17, 2016. [ 15 ] As of May 17, 2016 or May 20, 2016, Mr. Reveley replaced Mr. Beatch as counsel for Mr. Thiessen because of conflict in Mr.

Beatch representing both accused. [ 16 ] On May 31, 2016, all accused elected trial in Provincial Court. [ 17 ] On June 8, 2016, trial dates were scheduled as follows: • Voir dire December 22, 23, 28, 29 and 30, 2016; • Voir dire decision January 26, 2017; and • Trial January 30, 31 and February 1st, 2017. (ii) Time from arraignment to first anticipated trial date - June 8, 2016 to December 22, 2016 - seven months. [ 18 ] On September 12, 2016 and October 13, 2016, supplemental disclosure was provided to counsel for all accused. [ 19 ] On November 1, 2016, counsel for Mr.

Morrissey advised Crown counsel by letter that he no longer represented Mr. Morrissey. [ 20 ] On November 14, 2016, counsel for Mr. Eheler provided Charter notice alleging a breach of Mr. Eheler's s. 8 rights, specifically challenging the search warrant issued in relation to unit 401 - 45615 Brett Avenue, Chilliwack, B.C. At that time, counsel for Mr. Eheler further advised that he was contemplating alleged breaches of s. 9 and 10 of the Charter . Mr. Nathanson further requested to cross-examine the affiant of the Information to Obtain.

[ 21 ] On November 4, 2016, in response to Mr. Beatch's letter of November 1, 2016, Crown counsel advised that she would have the matter added to the court list with both Mr. Beatch and Mr. Morrissey present to address counsel's withdrawal. [ 22 ] On November the 18, 2016, Crown counsel advised all counsel, including Mr. Beatch, that the matter had been added to the court list for November 23, 2016 because of the uncertainty of Mr. Morrissey's legal representation. [ 23 ] On November the 23, 2016, Mr. Morrissey appeared in court. The court was advised that Mr.

Beatch no longer sought to withdraw as counsel for Mr. Morrissey. The matter was struck from the list and Mr. Morrissey was adjourned to appear on December 22, 2016, for trial. [ 24 ] On November the 25, 2016, counsel for Mr. Eheler, Mr. Nathanson, advised Crown counsel that he would also be challenging the admissibility of CCTV and FOB records associated to unit 401 - 45615 Brett Avenue. [ 25 ] On December 13, 2016, Crown counsel proposed to counsel for all accused a

schedule for the voir dire as follows: December 22 and 23, a challenge to the lawfulness of the police access to the building's security footage; and December 28, 29 and 30, a challenge to the search warrant including any application to cross-examine the affiant. [ 26 ] Crown counsel further requested that counsel for the accused indicate what paragraphs of the Information to Obtain were the subject of their application and the basis of intended cross-examination. [ 27 ] In response to the Crown's suggested voir dire schedule, counsel for Mr. Eheler indicated he agreed.

He requested the production of three police officers for the purposes of cross-examination on the voir dire and he deferred providing information concerning cross-examination of the affiant to a later date. [ 28 ] On December 14, 2016, counsel for Mr. Morrissey, Mr. Beatch, advised Crown counsel that he had not given formal Charter notice on behalf of his client. [ 29 ] He advised that the search of his client's residence was in issue. He advised that he would be applying to cross-examine the affiant, as well as arguing "that the warrant should not have been issued based on a facial attack." Mr.

Beatch further advised "the access to the FOB and CCTV cameras by the police is in issue under s. 8." Finally, Mr. Beatch advised that he took issue with "the entry into the building by the police to gather evidence in the pre-warrant stage." [ 30 ] Mr. Beatch advised Crown counsel that he required the same three police officers requested by Mr. Nathanson and that he would advise of any other officers required for the voir dire . [ 31 ] On December 15, Crown counsel responded to the requests of counsel for Mr. Eheler and Mr. Morrissey advising that she was attempting to determine witness availability.

Further, Crown counsel advised its position that only Mr. Morrissey had standing to challenge the search of the Brett Avenue residence. Crown counsel advised that she intended to rely on only one of the officers requested and "the production of any other officer would be an adjournment required by the defence." [ 32 ] On December 16, 2016, counsel for Mr. Morrissey, Mr.

Beatch, questioned whether the December trial dates should be adjourned; the matter begin in January; and "add a few more days, if required." [ 33 ] Later, on December 16, 2016, Crown counsel advised that one of the witnesses requested for the voir dire would not be available for the week of December 22 and 23, 2016. Crown counsel suggested that counsel on behalf of the accused consider how they wished to proceed.

She indicated that she would not take a position with respect to a defence adjournment application if the court dates scheduled for January could be used for the voir dire and continuation dates could be set before counsel for Mr. Morrissey left on a sabbatical. (iii) Time from first anticipated trial date to second trial date - December 22, 2016 to January 26, 2017- one month [ 34 ] On December 20, 2016, Mr. Beatch appeared on behalf of counsel for all accused and applied to adjourn the December voir dire dates.

Crown indicated that it was prepared to proceed with the voir dire and advised that any required continuation should be set before Mr. Beatch went on sabbatical. The court granted the adjournment and directed the voir dire to start on January 26, 2017, the previously scheduled date for decision on the voir dire . The court further suggested that counsel begin looking for additional dates for any continuation. [ 35 ] By letter dated January 17, 2017, Mr. Cramer advised all counsel for the accused that he was now acting on behalf of the Crown.

He confirmed that new trial dates would need to be set and suggested new dates be set prior to a trial judge becoming seized at the voir dire . Mr. Cramer requested that counsel forward available dates and advised the Crown "will try to accommodate your earliest available dates." [ 36 ] On January 23, 2017, counsel on behalf of Mr. Eheler responded, indicating a preference to waiting before setting any additional trial dates. [ 37 ] On January 25, 2017, counsel for Mr. Thiessen, Mr.

Reveley, provided his form of Charter notice in relation to the voir dire set to commence the following day. [ 38 ] On January 26, 2017, the voir dire commenced and continued on January 26, 30, 31 and February 1, 2017. (iv) Time from end of second set of trial dates - the beginning of the continuation of the second set of trial dates - February 1st, 2017 to September 5th, 2017 - seven months. [ 39 ] On February 1, 2017, an additional 15 days of court time was set for continuation of the voir dire and completion of the trial.

The dates agreed upon were September 5 through 8, 11, 14, 19 through 21, 2017 and October 23 through 26, 2017. [ 40 ] On August 13, 2017, Crown counsel forwarded to all counsel for the accused draft admissions concerning the trial proper. Counsel for Mr. Eheler responded that he could not consider the admissions until the end of August. Counsel for Mr. Morrissey responded that his client was proceeding without him. Ultimately, Mr. Beatch remained on record as counsel for Mr. Morrissey. [ 41 ] On September 1, 2017, counsel for Mr.

Thiessen responded that he did not anticipate any difficulty with the admissions but would have to review them again in light of any ruling on the voir dire . [ 42 ] The evidence and submissions on the voir dire continued on September 5, 6, 7, 8, 11 and 14, 2017. The dates set for September 19 through 21, 2017, were cancelled and the voir dire was adjourned for a decision on standing to challenge the warrant. [ 43 ] On October 23, 2017, the court issued its ruling on the voir dire in regards to standing. [ 44 ] On October 24 and 25, 2017, Mr.

Morrissey's challenge to the search warrant continued and was ultimately dismissed on October 26, 2017. (

v) Time from ending of first set of continuation dates to completion of trial -October 26, 2017 to June 18th, 2018 - eight months [ 45 ] On October 25, 2017, continuation dates for trial were set for February 20, 21, 22, 23, 26, 27, 28 and March 1, 2018. [ 46 ] On February 20, 2018, counsel for Mr. Morrissey, Mr. Beatch, raised for the first time and without prior Charter notice a s. 8 allegation of an unlawful search, separate and apart from the issues raised in the prior voir dire . [ 47 ] On February 21, 2018, counsel for Mr. Eheler, Mr.

Nathanson, raised an issue with respect to Crown disclosure. [ 48 ] On February 22, 2018, the court heard submissions concerning the disclosure issue raised by counsel for Mr. Eheler, together with an application for a mistrial. [ 49 ] On February 23, 2018, the court issued its ruling concerning the disclosure issue and the mistrial application raised by Mr. Nathanson. [ 50 ] On February 26, 27, 28 and March 1, 2018, the court heard evidence on the trial proper. [ 51 ] On March 1, 6, 15 and 16, 2018, the court heard evidence and submissions concerning Mr.

Morrissey's second s.8 Charter allegation. [ 52 ] On April 10, 2018, the court ruled on Mr. Morrissey's Charter application. Following the ruling, each of the accused elected to call no evidence. [ 53 ] On April 10, 11 and 12, 2018, the court heard submissions on the trial proper. The decision was rendered on June 18, 2018. [ 54 ] Counsel agree the total delay from swearing of the Information to conclusion of trial was 30 months and 17 days. REFERENCE TO LEGAL FRAMEWORK (

a) The Jordan framework [ 55 ] On July 18, 2016, the Supreme Court of Canada rendered its decision in R. v. Jordan , 2016 SCC 27 . This decision created a new framework in which to consider applications alleging breaches of s. 11(

b) of the Charter of Rights and Freedoms , the right to be tried within a reasonable time. [ 56 ] The new 11(

b) framework comprises a ceiling of time in the court system which, if exceeded, will result in a presumption of unreasonableness. In Provincial Court the ceiling which, if exceeded, results in a presumption of unreasonableness, is 18 months (para. 46). [ 57 ] At paragraph 47 the court stated: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If it cannot, the delay is unreasonable and a stay will follow. [ 58 ] Defence delay is manifest in two ways. The first is delay waived by the defence. At paragraph 61 the court stated: Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.

However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness [citation omitted]. [ 59 ] The second manifestation of defence delay is delay caused solely by the conduct of the defence.

At paragraph 63 the court stated: This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated

defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous. At paragraph 65 the court continued: To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed.

In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.

While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [ 60 ] Where 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 the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. (para. 69) [ 61 ] Where the ceiling is breached, the Crown cannot simply point to past difficulties. At paragraph 70 the court stated: It [the Crown] must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [ 62 ] The Supreme Court notes that ultimately determining whether circumstances are exceptional will depend on the trial judge's good sense and experience.

It further notes the list of circumstances that may qualify as exceptional circumstances is not closed but generally fall under the categories of discrete events and particularly complex cases. With respect to discrete events, the court stated at paragraphs 73 and 74: Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution.

For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [ 63 ] Any discrete exceptional events are subtracted from the total period of delay in determining whether the total delay exceeded the ceiling. [ 64 ] With respect to particularly complex cases, the court stated at paragraph 77: Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time such that the delay is justified.

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.

Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required. (para. 80) ISSUES [ 65 ] The total time of delay in this case is 30 months and 17 days. The parties disagree on how much of the delay is waived by Mr. Eheler and Mr. Thiessen and how much of the delay is defence-caused delay.

This necessarily involves determining how to attribute delay caused by the co-accused Mr. Morrissey. The parties also disagree on whether exceptional circumstances exist. Therefore, the issues are: 1. What, if any, delay has been waived by Mr. Eheler and Mr. Thiessen is defence caused delay? 2. What is the net delay for each; and 3. If the net delay exceeds the ceiling, do exceptional circumstances exist that rebut the presumption of unreasonableness? POSITION OF THE PARTIES

Defence Position [ 66 ] In this case, counsel for Mr. Eheler and Mr. Thiessen submit the delay was occasioned by Mr. Morrissey's actions in challenging the search of unit 401. Counsel for Mr. Eheler and Mr.

Thiessen submit that delay caused by one accused should not be attributed to all accused. [ 67 ] Also, counsel submit that their agreement for adjourning the trial dates in December 2016 was "acquiescence to the inevitable" and should not be attributed to their clients. [ 68 ] In the alternative, counsel submit that if the court found that the adjournment was delay caused solely by the conduct of the defence or Mr. Eheler and Mr.

Thiessen waived the delay, the delay is limited to the period of time between the adjournment and the commencement of the trial on January 26, 2017. [ 69 ] Counsel submit that when one month is subtracted from the overall period of delay, there remains 29 months 17 days of total delay. Counsel submit that there are no circumstances qualifying as a discrete event, nor is this a particular complex case.

Crown Position [ 70 ] Counsel for the Crown submits that from the total delay the following must be considered as lying outside the Jordan framework or subtracted as defence delay or waiver from the total delay: (1) delay occasioned by judicial reserve time; and (2) defence delay including delay prior to the arraignment, delay arising from late Charter notices or defence adjournment requests and delay due to defence unavailability for earlier continuation dates. [ 71 ] In the alternative, the Crown submits that if the net delay after reserve time, waiver or defence delay is subtracted exceeds the presumptive ceiling, then discrete events exist or this case qualifies as a particularly complex case and is therefore reasonable. (

i) Delay occasioned by judicial delay time [ 72 ] In this case, the Crown submits that a total of four months 10 days represents time during which decisions were under reserve. This time is noted as the periods of September 14, 2017 to October 23, 2017, decision concerning standing to challenge the search warrant, one month nine days; March 16, 2018 to April 10, 2018, decision concerning Mr.

Morrissey's second s. 8 challenge, 25 days; and April 12, 2018 to June 18, 2018, decision concerning verdict, two months six days. [ 73 ] Counsel for the Crown submits that time taken which falls short of being "shocking, inordinate and unconscionable" which would provide a standalone basis for a stay of proceedings, should not be included in the time accumulating towards the presumptive ceiling. In support, the Crown relies on R. v. Mamouni , 2017 ABCA 327 ; R. v. Brown , 2018 NSCA 62 ; R. v. K.G.K. , 2017 NBQB 96 ; and R. v.

Hammer , 2017 BCPC 377 . [ 74 ] With respect, I would not accede to the Crown's submission on this issue. [ 75 ] In Jordan , the Supreme Court of Canada refers to "a new framework for applying s. 11(b)" that "accounts for specific factors both above and below with the presumptive ceiling." (para. 5) [ 76 ] At paragraph 53 the court stated: ... the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case.

These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin . At paragraph 65 the court stated: In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling [emphasis added].

And such a deduction would run contrary to the accused’s right to make full answer and defence. [ 77 ] If defence applications that are not frivolous are not to be counted against the defence, then it seems inconsistent not to include the time necessary to consider those applications. To not consider this time in a calculation would effectively operate in the same way as defence waiver of time or defence-caused delay. [ 78 ] In my view, the presumptive ceilings account for the time required to render judicial decisions.

Under the actions of determining net delay, circumstances that must be subtracted are specifically limited to waiver or defence-caused delays. Where judicial reserve time may be significant but not "shocking, inordinate and unconscionable", in my view, it would be inconsistent with the values expressed in Jordan to treat the time necessary to render judicial decisions in the same way as defence delay or defence waiver of delay. This seems explicit in paragraphs 66 and 68 of Jordan : To summarize, as a first step, total delay must be calculated, and defence delay must be deducted.

Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. [ 79 ] I pause to note that I was provided by Mr. Nathanson with two additional cases, the case of R. v. Lai , 2018 BCSC 867 ; and R. v. McConnell , 2018 BCSC 2258 .

I have reviewed those cases and I certainly rely upon them for the decision that I have made.

[ 80 ] I would not subtract the time taken to render judicial decisions in determining the net delay. Rather, in my view, the time taken to render judicial decisions may be taken into consideration as an exceptional circumstance. (ii) What, if any, delay has been waived by Mr. Eheler and Mr. Thiessen or is defence caused delay? [ 81 ] In this case, to determine any delay waived by either Mr. Eheler or Mr. Thiessen or to determine any defence-caused delay, it is necessary to consider whether, in a trial involving co-accused, the actions of one accused are attributable to all accused. [ 82 ] In R. v.

Gopie , 2017 ONCA 72 at paragraphs 128 through 130, Madam Justice Gillese held: I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. I begin by acknowledging that Jordan does not expressly address this issue. However, the Jordan framework is based on the concept of accountability, focusing on the conduct of individual players in the justice system.

Furthermore, when discussing defence-caused delay, the court in Jordan directs an assessment of the “accused’s acts” and whether his or her acts directly caused delay, or can be shown to be a deliberate and calculated tactic to delay the trial ( Jordan , at para. 63 ). This language suggests that the conduct of the accused must be looked at on an individual basis and attributed accordingly. The Supreme Court recently provided further guidance on the concept of defence-caused delay in R. v. Cody , 2017 SCC 31 .

At para. 30 of Cody , the Court emphasized that the only deductible defence-caused delay is that which “is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges”. [ 83 ] In this case, five days originally set for voir dire were adjourned at the instigation of counsel for Mr. Morrissey. Mr. Eheler and Mr. Thiessen consented to the adjournment and, through counsel, waived the period of delay.

The voir dire commenced on January 26, 2018. [ 84 ] Counsel for the Crown submits that the period waived and therefore deducted should be from December 22, 2016 until September 5, 2017. However, any waiver must have the full knowledge of the accused as well as an understanding of the effect the waiver will have on their rights. [ 85 ] In this case, I find that the expectation of Mr. Eheler and Mr. Thiessen was as suggested by Mr. Beatch, that if additional dates for completion of the voir dire were necessary, they could be added following the scheduled dates in January and February 2017.

I find it could not have been contemplated at the time that the number of dates required would expand or that the continuation dates would not be set until September 2017. [ 86 ] I find that the period of delay waived by Mr. Eheler and Mr. Thiessen was that time between December 22, 2016 and January 26, 2017, one month, but the waiver does not extend to September 2017. A one-month period of time should be subtracted from the total delay. [ 87 ] The standing voir dire was not completed by February 1, 2017 and further dates were required.

The decision on standing was not made until October 23, 2017. [ 88 ] Following the court's decision on standing, Mr. Morrissey's challenge to the search warrant had to be heard and a decision rendered before the trial for all accused could proceed. That application was heard on October 24, 25, and 26, 2017. [ 89 ] Following the decision on Mr. Morrissey's challenge to the search warrant, the trial was adjourned to February 20, 2018 for a trial of eight days. It is of note that the original estimate for the trial, apart from the voir dire , was three days. [ 90 ] On February 20, 2018, counsel for Mr.

Morrissey sought to bring a second challenge to the search of unit 401 based on the reasonableness of the manner in which the search was conducted, a dynamic entry. [ 91 ] While the timing of the application and the lack of notice were of concern, the court found that the application was not frivolous and, therefore, was necessary to proceed. The application was adjourned to allow Mr. Beatch to provide written notice for his application. [ 92 ] On February 21, 2018, counsel for Mr. Eheler raised concerns with what he characterized as late, new disclosure. [ 93 ] On February 22, 2018, Mr.

Nathanson applied for a mistrial. [ 94 ] On February 23, 2018, the court dismissed the mistrial application. [ 95 ] Between February 26, 2018 and April 12, 2018, nine sitting days, Mr. Morrissey's search voir dire , the remainder of the evidence and submissions of counsel on the trial proper were heard. [ 96 ] I find that none of the delay could be considered as defence delay, as defined in Jordan . The delay was not waived by Mr. Eheler or Mr. Thiessen, nor was it delay caused by them. [ 97 ] Aside from the concerns of timing stated earlier regarding Mr.

Morrissey's second challenge to the search of unit 401, none of the applications brought by the accused in this case were frivolous. [ 98 ] In the result, I find that from the total delay of 30 months 17 days a period of one month must be subtracted, leaving a net delay of 29 months 17 days. That net delay exceeds the presumptive ceiling.

(ii) Whether exceptional circumstances justify the delay [ 99 ] Having found that the net delay exceeds the presumptive ceiling, the Crown must rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances are defined as those that lie outside the Crown's control in that they are reasonably unforeseen or reasonably unavoidable and the Crown could not reasonably remedy the delays emanating from those circumstances. Once they arose, so long as they meet this definition they will be considered exceptional.

They need not meet a further hurdle of being rare or entirely uncommon. Exceptional circumstances generally fall under the categories of discrete events and particularly complex cases. A. Discrete events [ 100 ] Counsel for the Crown submits that four periods should be found as discrete events:

(1) April 12, 2016 to May 17, 2016, Mr. Eheler was prepared to arraign while Mr. Thiessen sought counsel because of a conflict of interest in Mr. Beatch acting for both Mr. Thiessen and Mr. Morrissey, one month five days.

(2) May 17, 2016 to May 31, 2016, time required to correct an error in registering the election of the accused, 14 days.

(3) October 26, 2017 to February 20, 2018, the period when Crown and the court were available but all counsel for the accused were not. Crown suggests two months seven days.

(4) March 1, 2018 to April 10, 2018, the Crown submits the period was triggered by several discrete events including Mr. Morrissey's second Charter challenge, Mr. Eheler's mistrial application, the late confirmation of admissions by the accused and court disruptions during this period. B. Particularly complex cases [ 101 ] In the alternative, counsel for the Crown submits that this case qualifies as one of particular complexity justifying it exceeding the presumptive ceiling. I will address the issue of particular complex cases first. [ 102 ] In R. v.

Gopie , Madam Justice Gillese stated at paragraph 169: Delays arising from complexity may justify an otherwise unreasonable delay that exceeds the ceiling ( Jordan , at paras. 80-81, 105 ). The nature of the issues and the evidence drive the complexity analysis under Jordan. [ 103 ] In R. v. Singh , 2016 BCCA 427 at paragraph 20 the court stated: Exceptional circumstances also cover cases that are particularly complex. In those cases, the nature of the evidence or issues that require an inordinate amount of trial and preparation time may justify delay.

Hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, charges covering a long period of time, and a large number of pre-trial applications. Proceeding jointly against multiple co-accused, so long as it is in the interests of justice to do so, may also impact the complexity of the case (para. 77). [ 104 ] In this case, some of the criteria concerning particularly complex cases exist. The court was advised that approximately 18,000 pages of disclosure was provided. While not of the "mega trial" volume, it is considerable.

The significance of this is best illustrated, in my view, from the mistrial application brought by Mr. Eheler. Although the basis of the application was new and late disclosure, the court found that it was not new disclosure but rather provided in an alternative form. Counsel for the Crown advised that the original witness list included 59 police officers, including expert witnesses, a civilian member of the RCMP and five civilian witnesses.

While not all of these witnesses were called at trial, in my view, it suggests a higher level of complexity. [ 105 ] Applications made by the accused included a standing application, a challenge to the search warrant, a second challenge to the manner of the search, a mistrial application, and a voir dire concerning the admissibility of portions of the expert witnesses' evidence. [ 106 ] Most significantly, in my view, is the involvement of multiple accused. In Gopie at paragraphs 169 and through 170 the court stated: Complexity may also arise from proceedings that involve more than one accused.

As noted in Jordan , at para. 77 , “proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.” The Supreme Court underlined this point at para. 6 of Vassell , stating 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.” At paragraph 171: There may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11(

b) rights are in jeopardy. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the best interests of justice. One accused cannot be held “hostage” by his co-accused’s actions or inactions ( Vassell , at para. 7; and Manasseri , at para. 323). At paragraph 174 the court stated: The proceedings were undoubtedly complicated by the fact that the case involved multiple accused. However, in this case, the interests of justice favoured proceeding against the appellants jointly.

The core allegations involved the accused having worked together to import cocaine through the Montreal airport. Importantly, as the application judge found at para. 120 of his reasons: “This is not a case where severance was requested or where severance was an option.” [ 107 ] In this case, there is no question that proceeding jointly against all accused was in the interest of justice. Mr. Eheler and Mr.

Thiessen were found in a condominium unit rented by Mr. Morrissey, together with significant quantities of cocaine, Phenacetin, and materials used in the processing of bulk cocaine and crack cocaine. [ 108 ] The question is, did proceeding against all three accused affect the complexity of the trial? In my view, it did. The complexity was manifest from the beginning to the end of the trial. [ 109 ] Originally, the trial was set for a total of eight days.

Five days were contemplated to complete the search voir dire and three days to complete the trial. [ 110 ] When the December 2016 voir dire dates were adjourned, the result was a voir dire requiring an expanded amount of time greater than that originally contemplated by counsel. The remaining four days in January and February were not sufficient to conclude the voir dire . The voir dire was not close to being completed in that time. [ 111 ] The standing issue alone occupied 10 court days with a decision given on October 23, 2017. Following the decision on standing, it was necessary to consider Mr.

Morrissey's challenge to the search warrant. The trial could not continue until that was completed. [ 112 ] When the trial continued in February 2018, instead of the original estimate of three days for completion it was set for eight days. [ 113 ] On the first day in February 2018, counsel for Mr. Morrissey raised his second Charter challenge. [ 114 ] In addition, counsel for Mr. Eheler, supported by counsel for Mr.

Thiessen, brought an application for a mistrial. [ 115 ] The need to reserve for decisions on the various defence applications and the need to make those decisions before the trial could proceed was also demonstrative of the case's complexity. [ 116 ] Nothing in what the court states is a criticism of the conduct of the trial. In my view, all counsel acted professionally.

However, the manner in which the trial proceeded, expanding in terms of time required is, in my view, also demonstrative of the case's complexity. [ 117 ] The ability to secure earlier continuation dates was adversely affected because of multiple accused and having to accommodate multiple calendars, including the court's schedule, a logistical complexity existing. [ 118 ] Although I have found that the case is a particularly complex case, I would also find that there existed discrete events.

Reminding myself that exceptional circumstances are defined as those that lie outside the Crown's control in that (1) they are reasonably unforeseen and reasonably unavoidable; (2) the Crown could not reasonably remedy the delays emanating from those circumstances and need not meet a further hurdle of being rare or entirely uncommon. These discrete events are as follows: 2. The additional time required for all accused to retain counsel, properly enter an election and set trial dates - April 12 to June 6, 2016, one month 25 days. 3.

The additional time required to complete the first search voir dire February 1, 2017 to October 26, 2017, nine months. 4. The additional time required to complete the trial - March 1, 2018 to April 12, 2018, one month 12 days. [ 119 ] The total time subtracted for discrete events, 12 months seven days. Subtracting this time would leave a net delay of 17 months 10 days. CONCLUSION [ 120 ] In

summary, I find that the net delay caused is a period of 28 months 17 days, having deducted one month as defence waiver between December 2016 and January 2017. The net delay exceeds the presumptive ceiling of 18 months for the trial in this court. [ 121 ] I find this case is a particularly complex case because of multiple accused and, therefore, find the delay of 29 months 17 days to be reasonable. [ 122 ] I also find that when discrete events are subtracted from the initial net delay, the remaining delay amounts to 17 months 10 days.

This delay is under the ceiling leading to a presumptive unreasonableness. [ 123 ] I wish to thank counsel for their submissions. [ 124 ] In the result, I dismiss the applications of Mr. Eheler and Mr. Thiessen. (RULING RE

SECTION 11(

b) APPLICATION CONCLUDED)