R. v. Hammer, 2018 BCPC 56

Citation: R. v. Hammer 2018 BCPC 56 Date: 20180222 File No: 39585-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH WILLIAM HAMMER RULING ON APPLICATION OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: A. Murray Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: January 15, 2018

Date of Judgment: February 22, 2018 Introduction [1] On August 15, 2017, I found Mr. Hammer guilty of possessing heroin, a controlled substance, for the purpose of trafficking,contrary to Section 5(2) of the Controlled Drugs and Substances Act. [2] On November 2, 2017, Mr. Hammer applied for a stay of proceedings pursuant to ss. 11(

b) and 24(1) of the Canadian Charterof Right and Freedom on the basis his right to be tried within a reasonable time has been infringed or denied. These sections state: 11. Any person charged with an offence has the right . . . (

b) to be tried within a reasonable time; 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [3] The primary purpose of s. 11(

b) of the Charter is to protect the individual rights of the accused, namely his security of person,right to liberty, and the right to a fair trial. It also has a secondary purpose, namely the interest of society to see an accused person treatedfairly by the legal system: R. v. Morin, (SCC). [4] In R. v. Jordan, 2016 SCC 27, the majority held at para. 19: [19] . . . the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice.

It findsexpression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice to the accused, victims andtheir families, and the public as a whole. [5] The hearing of Mr. Hammer’s s. 11(

b) Charter application was adjourned to January 15, 2018. Issues: [6] The salient issues before this court are as follows: a. Have Mr. Hammer’s s. 11(

b) Charter rights been infringed? b. If so, should this Court order a stay of proceedings pursuant to s. 24(1) of the Charter? Evidence and Submissions [7] At the hearing of Mr. Hammer’s 11(

b) Charter application, I heard oral evidence of Joseph Hammer, submissions of counseland received the following documentation: a. The Defence’s Notice of Application and Constitutional Question dated November 1, 2017 and filed November 2, 2107; b. The affidavit of Chantelle MacLeod sworn and filed November 2, 2017 (“MacLeod Affidavit”); c. The affidavit of Joseph Hammer sworn and filed on November 2, 2017 (the “Hammer Affidavit”); d. The Crown’s Book of Transcripts (“Transcripts”); e. The Crown’s Argument on the Defence’s Delay Application filed November 2, 2017; f.

The Affidavit of Virginia Kaun sworn November 1, 2017 and filed November 2, 2017 (“Kaun Affidavit”); and g. The Crown’s Book of Authorities; h. The Crown’s supplemental submissions dated January 25, 2018; and i.

The Defence’s supplemental submissions dated February 1, 2018. [8] I reviewed the DARS logs for the trial dates of January 25 & 26, 2016, May 2, 2016, June 7 and 8, 2016, September 15, 2016,January 6, 2017, April 6, 2017, May 16, 2017 and June 7, 2017, to assess how many of the scheduled trial dates were actually devoted tothe trial of this matter. [9] The parties provided the Court with the following authorities: a. Crown Authorities: R. v. Cody, 2017 SCC 31; 2017 CarswellNfld 251 (SCC)

R. v. Hammer, 2017 BCPC 377 R. v. Hammer, Hammer, Malcolm, 2011 BCPC 234 R. v. Jordan, 2016 SCC 27; 2016 CarswellBC 1864 (SCC) R. v. K.G.K., 2017 MBQB 96; 2017 CarswellMan 236 (MBQB) R. v. Morin, (SCC), [1992] 1 S.C.R. 771;1992 CarswellOnt 75 (SCC) b. Defence Authorities: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 R. v. Morin, (SCC), [1992] 1 S.C.R. 771 R. v. Jordan, 2014 BCCA 241 , [2014] B.C.J. No. 1263 R. v. Jordan, [2016] S.C.R. No. 631 R. v. Williamson, [2016] S.C.R. 741 R. v. Baldini, [2012] B.C. J. No. 976 R. v. Dass, 2016 BCSC 1701 , R. v. M.N.T., [2016] B.C.J. No. 2350 R. v.

Picard, 2016 ONSC 7061 , [2016] O.J. No. 5845 / 2017 ONCA 692 , [2017] O.J. No. 4608 R. v. Reagan, 2016 ABQB 561 , [2016] A.J. No. 1050 R. v. Bishop, [2016] B.C.J. No. 2608 R. v. Park, [2016] S.J. No. 567 R. v. R.J. S., (SCC), [1995] 1 S.C.R. 451 R v Lovett, 2017 ABQB 701 , R v Mamouni, 2017 ABCA 347 Chronology of Proceedings [10] I have set out the chronology of proceedings in the table below. Date Event Delay 5 Aug 2014 Mr. Hammer is alleged to have been trafficking in heroin on August5, 2014.

On that day he was arrested by Constable Grieve forpossession of illegal drugs for the purposes of trafficking and hewas taken into police custody. -1 6 Aug 2014 Information 39585-01 was sworn August 6, 2014 charging Mr.Hammer with one count of possession of heroin for the purposes oftrafficking contrary to s. 5(2) of the Controlled Drugs andSubstances Act. (MacLeod Affidavit, para. 2, Exhibit “A”; KaunAffidavit, para. 4, Exhibit 2) 1 day 7 Aug 2014 A Judicial Interim Release hearing (“JIR”) with respect toInformation 39585-01 was scheduled for August 7, 2014. Ms.

Yaoattended on behalf of the Federal Crown and Mr. LeBlond attendedas counsel for Mr. Hammer. The JIR was adjourned to August 13,2014. (Kaun Affidavit, para. 5, Exhibit 1) 12 Aug 2014 Information 39585-2-C was sworn August 12, 2014 charging Mr.Hammer and Joanna Potskin with one count of possession of heroinfor the purposes of trafficking contrary to s. 5(2) of the ControlledDrugs and Substances Act. (MacLeod Affidavit, para. 3; Exhibit“C”; Kaun Affidavit, para. 6, Exhibit 3) 7 days 12 Aug 2014 The Federal Crown hand delivered Mr.

LeBlond with its disclosurematerials on August 12, 2014. (Kaun Affidavit, paras. 7 & 17,Exhibit 4 and 15) 7 days

13 Aug 2014 Mr. Hammer’s first appearance on Information 39585-2-C was scheduled for August 13, 2014. He was represented by Mr. LeBlond at this appearance and remanded in custody by consent to August 24, 2014. Crown Counsel advised Mr. LeBlond the Crown was applying to revoke Mr. Hammer’s bail on Court File 40410 and seeking Mr. Hammer’s detention on both Court Files 40420 and 39484-2-C. (Kaun Affidavit, para. 8, Exhibits 1 and 5) 8 days 20 Aug 2014 The Crown hand delivered Mr. LeBlond Supplemental Disclosure on August 20, 2014. (Kaun Affidavit, para. 17, Exhibit 14) 14 days 25 Aug 2014 Mr.

Hammer appeared before Regional Administrative Judge Brecknell in Prince George Provincial Court on August 25, 2014, for a (“JIR”). Mr. Hammer was represented by Mr. LeBlond at this appearance and Mr. Hammer was remanded in custody by consent. The matter was referred to the Judicial Case Manager (“JCM”) on August 25, 2014 to fix a date for a JIR. 19 days 25 Aug 2014 Counsel for the Crown and the Defence appear before JCM on August 25, 2014, to fix a date for Mr. Hammer’s JIR.

The fix date was adjourned to August 29, 2014. (Transcripts, Tab 1; Kaun Affidavit, para. 9, Exhibits 1 and 6) 19 days 29 Aug 2014 Counsel for the Crown and the Defence appeared before the JCM on August 29, 2014, to fix a date for Mr. Hammer’s JIR. Mr. Hammer was represented by Mr. LeBlond at this appearance and remanded in custody by consent. The fix date was adjourned to September 4, 2014. (Kaun Affidavit, para. 10, Exhibit 7) 23 days 04 Sep 2014 Counsel for the Crown and the Defence appear before the JCM on September 4, 2014, to fix a date for Mr. Hammer’s JIR. Mr. Hammer was represented by Mr.

LeBlond at this appearance and remanded in custody by consent. Mr. Hammer’s JIR was adjourned to September 10, 2014. (Kaun Affidavit, paras. 11 & 12, Exhibits 8 and 9) 29 days 10 Sep 2014 Counsel for the Crown and Defence appeared before the court for Mr. Hammer’s JIR on September 10, 2014. The matter was adjourned to September 19, 2014. Mr. Hammer was represented by Mr. LeBlond at this appearance. (Kaun Affidavit, para. 13, Exhibit 10) 1 month 5 days 19 Sep 2014 Mr. Hammer appeared before the court for a JIR on September 19, 2014. The hearing was adjourned to September 30, 2014, due to lack of court time. Mr.

Hammer was represented by Mr. LeBlond at this appearance. Crown reiterated its position that it did not accept Mr. Hammer’s proposed surety and bail plan and opposed Mr. Hammer’s release. (Kaun Affidavit, para. 14, Exhibit 11) 1 month 13 days 30 Sep 2014 Mr. Hammer appeared before the court for a JIR on September 30, 2014. The JIR was adjourned to October 2, 2014, due to lack of court time. Mr. Hammer was represented by Mr. LeBlond at this appearance. (Kaun Affidavit, para. 15, Exhibit 12) 1 month 24 days 02 Oct 2014 RAJ Brecknell granted Mr.

Hammer bail on October 2, 2014, on Informations 39585-2-C and 40410-1, on a $5,000 Recognizance to a Judge with deposit and Teresa Malcolm as a named surety. The Recognizance includes mobility restrictions, house arrest and abstinence from non-prescription drugs and alcohol. Mr. Hammer was represented by Mr. LeBlond in this proceeding. The Crown sought Mr. Hammer’s detention. Mr. Hammer was unable to perfect his bail until October 8, 2014 (Transcripts, Tab 2; MacLeod Affidavit, paras. 4 & 5, Exhibits “C” and “E”; Kaun Affidavit, para.16, Exhibit 13) 1 month 26 days 08 Oct 2014 Mr.

Hammer perfected his bail conditions on October 8, 2014, and was released from custody. (MacLeod Affidavit, Exhibit “E”; Kaun Affidavit, para. 18, Exhibits 1 and 15) 2 months 2 days 22 Oct 2014 Mr. Hammer appeared in court represented by Mr. LeBlond for his arraignment on October 22, 2014. The arraignment hearing was adjourned to November 12, 2014. (Kaun Affidavit, Exhibit 15) 2 months 16 days 12 Nov 2014 Mr. Hammer was arraigned on November 12, 2014. He entered a not guilty plea to the sole count on Information 39585 and elected trial before a Provincial Court Judge. Mr. Hammer was represented by Mr.

LeBlond at this court appearance. The matter was adjourned to November 18, 2014 to fix a date for a two day trial. (Kaun Affidavit, para. 19, Exhibits 1, 16 & 17) 3 months 6 days Date Event Delay

18 Nov 2014 On November 18, 2014, Counsel for the Crown and Defence attended before the JCM and fixed the first trial date. The Defence was offered and rejected the earlier dates of February 22 and 24, 2015. The trial was scheduled to proceed on April 16 and 17, 2015. (Kaun Affidavit, para. 20, Exhibit 17) 3 months 12 days 29 Jan 2015 On January 29, 2015, Mr. LeBlond filed a Consent Requisition to call date this matter on February 4, 2015.

He sought to apply to be removed as counsel of record as he was not sufficiently retained. (MacLeod Affidavit, para. 10, Exhibit “G”) 5 months 23 days 04 Feb 2015 On February 4, 2015, Mr. LeBlond appeared before Judge Gray seeking to be removed as Mr. Hammer’s counsel of record. He adjourned the application to February 11, 2015. (Transcripts, Tab 3; Kaun Affidavit, para. 21; Transcripts, Tab 3) 5 months 29 days 11 Feb 2015 On February 11, 2015, Mr. LeBlond appeared before RAJ Brecknell seeking to be removed as Mr. Hammer’s counsel of record.

He adjourned the application to March 4, 2015. (Transcripts, Tab 4; Kaun Affidavit, para. 22; Exhibit 18) 6 months 5 days 22 Feb 2015 24 Feb 2015 February 22 and 24, 2015, were the first trial dates offered; however were rejected by the defence. 6 months 16 days 04 Mar 2015 On March 4, 2015, Judge Galbraith granted Mr. LeBlond’s application to be removed as counsel of record for Mr.

Hammer. (Transcripts, Tab 5; Kaun Affidavit, para. 23; Exhibit 19) 6 months 28 days 09 Apr 2015 On April 9, 2015, the Crown filed a Notice of Application to adjourn the April 16 and 17, 2015 trial date against the co-accused Joann Potskin who had not been served with the Crown’s Notice of Intention to produce expert evidence. (Kaun Affidavit, para. 24; Exhibit 20) 8 months 3 days 10 Apr 2015 On April 10, 2015, Judge Callan heard the Crown’s application to adjourn the April 16 and 17, 2015 first trial dates. Mr. Hammer was not represented by legal counsel at this time.

Judge Callan granted the Crown’s application with delay attributable to the Crown. He directed the new trial date proceed whether or not Mr. Hammer had legal counsel. (Transcripts, Tab 6; Kaun Affidavit, para. 25; Exhibits 19 and 21) 8 months 4 days 10 Apr 2015 On April 10, 2015, the Crown and defence attended before the JCM and fixed second trial date for September 23 and 25, 2015 (5 hours each day). Mr. Hammer was not represented by legal counsel at this time.

The Defence declined the date of August 10, 2015, and both the Defence and Crown declined the date of August 11, 2015. (Kaun Affidavit, para. 26; Exhibit 22) 8 months 4 days 16 Apr 2015 17 Apr 2015 April 16 and 17, 2015 were the first trial dates which were adjourned by the Crown. Mr. Hammer was not represented by legal counsel at this time. 8 months 10 days 31 Jul 2015 The Crown couriered a duplicate disclosure package to Mr. Hammer personally. This package included the Crown’s Notice of Intention to Produce Expert Opinion and Notices of Intention with respect to the Certificates of Analyst.

The package was returned to the Crown on August 26, 2015, because it was unclaimed by the recipient. (Kaun Affidavit, para. 27; Exhibit 23) 11 months 24 days 03 Sep 2015 Sharon Toombs, legal assistant to Mr. LeBlond signed a disclosure memo indexing all materials duplicated and provided to Mr. LeBlond, including the Notices of Intention with respect to Certificates and Expert Opinion. (Kaun Affidavit, para. 28, Exhibit 24) 12 months 27 days 18 Sep 2015 21 Sep 2015 On September 18, 2015, Mr. LeBlond, on behalf of Mr. Hammer applied to adjourn the second trial date. The application was heard by Judge Gray. Mr.

LeBlond waived delay if the application was granted. Judge Gray granted the adjournment and the matter was referred to the JCM on September 21, 2015, to fix a second trial date. (Transcript, Tab 7; Kaun Affidavit, para. 29 , Exhibit 25) Mr. LeBlond represented Mr. Hammer at this and all subsequent court appearances. 13 months 12 days 23 Sep 2015 25 Sep 2015 A second scheduled trial date was fixed for September 23 and 25, 2015, and subsequently adjourned by Mr. Hammer. (MacLeod Affidavit, para. Exhibit “F”; Kaun Affidavit, para.30, Exhibit 26) 13 months 17 days Date Event Delay

23 Sep 2015 Mr. Hammer’s co-accused, Joanne Potskin did not appear at the scheduled trial date. Judge Gray granted her counsel’s application to be removed as counsel of record. The parties appeared before the JCM to reschedule the trial. This fix date was adjourned to September 30, 2015. (Kaun Affidavit, para. 30 , Exhibit 26) 13 months 17 days 01 Oct 2015 The matter was adjourned to the office of the JCM on October 1, 2015, to

schedule a third trial date. The fix date was then adjourned to October 5, 2015. (Kaun Affidavit, para. 31, Exhibit 1) 13 months 25 days 05 Oct 2015 On October 5, 2015, Mr. LeBlond attended before the Judicial Case Manager with the Crown Counsel and fixed the third trial dates of January 25 and 27, 2016 (5 hours each day). (MacLeod Affidavit, para. 11, Exhibit “H”; Kaun Affidavit, para. 32, Exhibit 27) 14 months 18 Nov 2015 The Crown directed a stay of proceedings of Court File 39585-2-C against the co-accused Joanne Potskin. 25 Jan 2016 The trial commenced and January 25, 2016 was the first day of trial.

Because of other matters scheduled in the same court room not involving the counsel in this matter, this case proceeded from 12:14 to lunch (at 12:24 p.m.) and from 3:19 p.m. to 3:46 p.m. and 3:50 to the end of the court day), for an approximate court time of 1 hour + 15 minutes.

The Court heard the examination in chief and cross- examination of Constable Danny Grieve. (Kaun Affidavit, para. 33 , Exhibit 28) 17 months 20 days 26 Jan 2016 The second day of trial continued on January 26, 2016, commencing at 10 a.m. and proceeding to the end of the court day with a few minor interruptions, for an approximate court time of 4.5 hours. The Court heard the examination in chief and cross-examination of Constables Candace Slaunwhite and Bryson Hipkin and the examination in chief of Sergeant Kent MacNeill. The Court also received into evidence seven exhibits.

At the end of the second day of trial, the matter was referred to the JCM to fix a further day and one-half for trial. (Macleod Affidavit, para. 12; Kaun Affidavit, para. 33 , Exhibit 28) 17 months 21 days 29 Jan 2016 On January 29, 2016, counsel for the Crown and Defence attended before the JCM to fix dates to continue the trial. The trial was scheduled to continue on May 2, 2016 and July 7, 2016. Although both Crown and Defence Counsels were available as of April 1, 2016, Judge Doulis was not available until May 2, 2016. Mr. LeBlond was not available for the entire month of June.

The Scheduling Notice issued January 29, 2016, does not indicate any dates offered before May 2, 2016 and declined by either party. (Macleod Affidavit, para. 13, Exhibit “I”; Kaun Affidavit, paras. 34 & 35 , Exhibits 29 & 30) 02 May 2016 Day three of the trial continued on May 2, 2016, although a CFCSA matter was scheduled from 2:00 pm to 3:30 pm, while the Crown and Defence attended to other matters. The approximate court time spent on this matter was 3.5 hours.

On that day, the Court heard the examination in chief and cross examination of Sergeant Kent MacNeill and the examination in chief of Constable Phil Charron. The Court also received into evidence 13 exhibits. At the end of the third day of trial, the matter was referred to the JCM to fix further dates for the continuation of the trial. (Kaun Affidavit, para. 36, Exhibit 31) 19 months 26 days 04 May 2016 On May 4, 2016, the Crown and defence attended before the JCM and fixed trial continuation dates for July 7 and 8, 2016.

The Scheduling Notice issued on this day does not indicate any other dates were offered to or declined by either party. (Kaun Affidavit, para. 37 , Exhibit 32) 19 months 28 days 07 Jul 2016 Day four of the trial was scheduled for 5 hours on July 7, 2016; however, it did not proceed at all due to lack of court time. (Macleod Affidavit, para. 14, Exhibit “J”; Kaun Affidavit, para. 39, Exhibit 34) 23 months 1 day Date Event Delay

08 Jul 2016 Day five of the trial was scheduled to continue for 5 hours on July 8, 2016, but did not start until 11:37 a.m. due to other matters on the docket. Similarly, other matters were scheduled from 2:00 to 2:42 pm. The approximate court time spent on this matter on July 8, 2016 was roughly 3 hours. On that day, the Court heard the examination in chief and cross-examination of Michelle Halikowski and Sergeant Kent MacNeill and the continued examination of chief of Phil Charron. The Court also received into evidence 9 exhibits.

At the end of the fourth day of trial, the matter was referred to the JCM to fix further dates for the continuation of the trial. (Kaun Affidavit, para. 40, Exhibit 34) 23 months 2 days 08 Jul 2016 11 Jul 2016 15 Jul 2016 At the end of the day five of the trial on July 8, 2016, the matter was referred to the JCM on July 11, 2016 to fix scheduled trial continuation dates. The Crown and the Court were available on September 15, 26 & 27, 2016. Mr. LeBlond was available on September 15, 2016, but unavailable from September 19 to December 9, 2016.

The trial continuation was set for January 6, 2017. (Macleod Affidavit, para. 15, Exhibit “K”; Kaun Affidavit, paras. 40 & 41, Exhibit 35 &36) 23 months 2 days 17 Aug 2016 19 Aug 2016 August 17 and 19, 2016 were the first available dates to reschedule a continuation of the trial after the Court had cancelled the July 7, 2016 trial date. Mr. LeBlond was not available on those dates. (Kaun Affidavit, Exhibit 17). 09 Sep 2016 The Crown applied for a Pre-Trial Conference on September 9, 2016. Mr. LeBlond indicated he was available for the continuation of the trial no earlier than January 6, 2017.

The matter was referred to the Judicial Case Manager on that date to fix a further date for trial. Judge Doulis was only available in November 2016, when Mr. LeBlond was not available. (Transcripts, Tab 8; Macleod Affidavit, para. 16, Exhibit “”L”; Kaun Affidavit, paras. 41 & 42, Exhibits 36 & 37) 25 months 3 days 09 Sep 2016 The continuation of the trial was scheduled for September 15, 2016 and January 6, 2017.

The Scheduling Notice indicates that I was not available until December 22 and 23, 2016. (Macleod Affidavit, para. 17, Exhibit “M”; Kaun Affidavit, para. 43, Exhibit 38) 25 months 3 days 15 Sep 2016 The fifth day of the trial proceeded on September 15, 2017, but not until 12:00 p.m. due to a family matter given priority. Although this was scheduled for 5 hours, the actual court time was 2.5 hours. On that date, the Crown continued with the examination in chief of its lead investigator and exhibit custodian, Constable Phil Charron.

It tendered into evidence 13 exhibits and made submissions on the adequacy of Notice of the Crown’s intention to rely on the Certificate of Analysis. (Kaun Affidavit, para. 44, Exhibits 39 and 40) 25 months 10 days 06 Jan 2017 The sixth day of the trial was scheduled to proceed on January 6, 2017, for 5 hour. There was an interruption between 2:00 p.m. and 3:33 p.m. at which time the court dealt with a CFCSA matter and counsel on this matter were “working out submissions”. The total court time spent on this matter on January 6, 2017 was 3.5 hour.

At this time, some time was spent on the adequacy of the Crown’s Notice of Intention to rely on the Certificate of Analysis. Also, the Court heard the examination in chief and cross examination of Constable Charron and the examination in chief of Crown expert, Corporal Jeff Ringelberg. The Crown tendered into evidence 12 exhibits. The Court qualified Corporal Ringelberg as an expert witness in Voir Dire #1.

The matter was adjourned to the JCM to fix two more days of trial. (Macleod Affidavit, para. 17, Exhibit “M”; Kaun Affidavit, para. 45, Exhibit 40) 29 months 06 Jan 2017 10 Jan 2017 17 Jan 2017 18 Jan 2017 Counsel for the Crown and Defence attended before the JCM, and settled on a trial continuation date for April 6, 2017. The Crown and the Court were also available from May 23 to 26, 2017, for a second continuation date; however, Mr. LeBlond was not available on those dates. (Kaun Affidavit, paras. 46 - 47, Exhibit 1, 41) 29 months Date Event Delay

10 Feb 2017 Counsel for the Crown and Defence attended before the JCM, andscheduled trial continuation dates for April 6, 2017 and June 7,2017. Judge Doulis was not available for a number of earlier date.No other dates were indicated on the February 10, 2017 SchedulingNotice as offered and declined. (MacLeod Affidavit, Exhibit “M”;Kaun Affidavit, paras. 48, Exhibit 42) 30 months 4days 06 Apr 2017 The seventh day of the trial was scheduled to continue on April 6,2017, for 5 hours. The Court heard the continued examination inchief and cross examination of Crown expert, Jeff Ringelberg, inVoir Dire #2.

The Crown and Defence argued the admissibility ofthe Certificates of Analysis and the adequacy of the crown’s Noticeof Intention. The Judge reserved her decision. The Court recordindicates the Judge dealt with another criminal matter not involvingCounsel in this matter from 1:30 p.m. to 3:10 p.m.

The total courttime spent on this matter on April 6, 2017 was approximately 3.5hours. (MacLeod Affidavit, para. 18; Kaun Affidavit, para. 49,Exhibit 43) 32 months 07 Apr 2017 On April 7, 2017, Counsel for the Crown and Defence attendedbefore the JCM to fix a date for the Court’s decision on theadmissibility of the Certificate of Analysis.

The Judge’s decision inthis regard was scheduled for May 16, 2017. (Kaun Affidavit, para.50, Exhibit 44) 32 months 1 day 16 May 2017 On the eighth day of trial, the Court delivered its decision in R. v.Hammer, 2017 BCPC 144 finding the Certificate ofAnalysis admissible into evidence at trial. Total Court time devotedto this matter was 1 hour. (Transcript, Tab 9; MacLeod Affidavit,para. 18; Kaun Affidavit, para. 51, Exhibits 44 & 45) 33 months 10 days 07 Jun 2017 Day nine of the trial continued on June 7, 2017. The Crowntendered into evidence 7 exhibits and closed its case.

The Defenceelected not to call a defence and Counsel for the Crown and Defencemade closing submissions on the merits of the Crown’s case. Thematter was referred to the JCM to fix a date for a decision. TheCourt record indicates the matter started at 9:30 a.m. and proceededto the lunch break (12:30 p.m.) for a total court time ofapproximately 2.5 hours. (MacLeod Affidavit, para. 18; KaunAffidavit, para. 52, Exhibit 46) 34 months 1 day 7 Jun 2017 On June 7, 2017, the defence filed a Notice of Application andConstitutional Issue seeking relief under ss. 11(

b) and 24(1) ofthe Charter. (Kaun Affidavit, para. 52, Exhibit 46) 34 months 1 day13 Jun 2017 23 Jun 2017 Counsel for the Crown and the Defence appeared before the JCM tofix August 15, 2017 as the date for the Court’s decision andReasons for Judgement. The JCM cancelled the June 27, 2017 fixdate. (Kaun Affidavit, para. 53, Exhibit 47) 34 months 7 days 15 Aug 2017 The Court delivered its decision in R. v. Hammer, 2017 BCPC 231 finding Mr. Hammer guilty of possessing heroin, acontrolled substance, for the purpose of trafficking, contraryto s.5(2) of the CDSA. The matter was adjourned to the JCM to fixa date for the hearing of Mr. Hammer’s s. 11(

b) Charterapplication. (MacLeod Affidavit, paras. 18 & 19, Exhibit “N”; KaunAffidavit, para. 54, Exhibit 47) 36 months 9 days 16 Aug 2017 23 Aug 2017 24 Aug 2017 31 Aug 2017 14 Sep 2017 18 Sep 2017 Counsel for the Crown and the Defence appeared before the JCM tofix November 2, 2017 as the date for the hearing of Mr. Hammer’ss. 11(

b) Charter application. (Kaun Affidavit, paras. 54 to 56,Exhibits 1, 47 to 49) 36 months 10 days 02 Nov 2017 Mr. Hammer’s s. 11(

b) Charter application came on for hearing onNovember 2, 2017. Unbeknownst to both counsel, the trial judgewas scheduled to hear the application remotely by video. Thematerials relevant to the application were not sent to the applicationsjudge. In any event, there was insufficient court time to hear theapplication on that day. The Court gave the application to the JCMto reschedule it for a time when the judge could hear it in person inPrince George Provincial Court. 38 months 27 days Date Event Delay

02 Nov 2017 Counsel for the Crown and the Defence appeared before the JCM tofix January 15, 2018 as the hearing date for Mr. Hammer’s s. 11(b)Charter application. 38 months, 27days 15 Jan 2018 Mr. Hammer’s s. 11(

b) Charter application proceeded in PrinceGeorge Provincial Court on January 15, 2018. 41 months 9 days22 Feb 2018 The Court handed down its decision on Mr. Hammer’s 11(b)Charter application. 42 months +16 days Date Event Delay The Legal Framework The Jordan Analysis [11] On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, establishing a new analyticalframework for determining whether an accused’s s. 11(

b) Charter rights have been violated. Jordan’s companion case, R. v.Williamson, 2016 SCC 28 , was released the same day. [12] Jordan sets the temporal ceilings for the prosecution of criminal cases in Canada. The presumptive ceiling for cases tried inSupreme Court is 30 months; the presumptive ceiling for cases tried in provincial court is 18 months. If the total time from the chargedate to the actual or anticipated end of the trial (minus defence delay) exceeds the ceiling, the delay is presumptively unreasonable:Jordan, para. 56. [13] The Jordan roadmap engages a seven step process which I have set out below.

Step One: calculate elapsed time [14] Firstly, the Court must calculate the total elapsed time from the charge date to the end of the trial: Jordan, para. 60; Cody, para.21; Morin, para. 30. [15] The question as to when the clock begins ticking in s. 11(

b) Charter applications is well settled: it is the date the charge is laid:Morin, para. 30. When or if the clock stops ticking is not so clear cut. In British Columbia the B.C. Supreme Court has ruled the trialends with conviction not sentence: R. v Dadmand, 2017 BCSC 1644 , R. v. Akuma, 2017 BCSC 896 ; and R. v.Pelletier, 2016 BCSC 2496 . Does the total elapsed time include the reserve period? [16] The Crown submits the reserve period between the last trial day and the decision date should not factor into the calculation forthe total elapsed time.

In support of this proposition the Crown relies on K.G.K., in which Chief Justice Joyal of the Manitoba Court ofQueen’s Bench held, at para. 43, that judicial deliberation time must be excluded from the presumptive ceiling analysis. Joyal C.J.,summarizes his position at para. 60: [60] To summarize, judicial delay should not be assessed and accounted for by including it under the new Jordan framework andmeasuring it against the stark and associated presumptive ceilings.

Not only does the Jordan framework not provide a mechanism foradequately balancing and reconciling the relevant constitutional principles at play, the framework – if applied to judicial delay – wouldgive rise to practical problems that would have the paradoxical effect of compromising much of the predictable and certain efficiencyand accountability that Jordan was attempting to bring. [17] Joyal C.H. was particularly concerned that judicial independence may be compromised if the reserve period was included in thepresumptive ceiling: K.G.K., paras. 88-93. [18] The Defence points out that while the decision of Chief Justice Joyal in K.G.K. is persuasive; it is not binding on this court.

Moreover, other jurisdictions have ruled differently. In R v Lovett, 2017 ABQB 701 , Justice K.M. Eidsvik declined to followK.G.K. on this issue. She referred to the Alberta Court of Appeal case in R. v Mamouni, 2017 ABCA 347, where the appellate court wasdivided on whether the amount of time the trial judge reserved judgment should be counted in the presumptive ceiling. Justice Watsonstated the reserve time before conviction was to be included in the presumptive ceiling unless there are “exceptional circumstances”, inwhich case the time can be reduced or removed.

Justice Slatter, referencing K.G.K., opined at para. 34 that “[t]he time that it takes for areserved decision to be rendered is not ‘delay’, and should not be counted in the s 11(

b) analysis at all”. Justice Crighton found itunnecessary to address the issue to dispose of the Mamouni appeal and as a result, there was no majority opinion on whether the reservetime should be excluded from the Jordan presumptive ceiling analysis. Justice Eidsvik states in Lovett, in part: [38] In my view, Jordan is quite clear that the presumptive time to be calculated is until the time of conviction . . . The Court set out thatexceptional circumstances could be considered, and as Justice Watson did, he excluded some “reserve time” on that basis in Mamouni.

The timespan discussed in Jordan is not all “delay” time, as Justice Slatter appears to be suggesting. It obviously includes time that usedto be called “inherent” or “neutral”. Jordan moved away from this characterisation. [39] As Cody reiterated at para 36: A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justicesystem share this responsibility (Jordan, at para. 137) [emphasis mine] [40] As a result, in my view, reserve time should be part of the initial calculation of time under the Jordan framework. If there is some

reason, say because of the complexity or discreet circumstances (like the serious family issue that befell the trial judge in Mamouni) thenthat time can be taken into account. Judges, although independent, are part of the criminal justice system and the reasonable time thatthe judge needs to write reasons for judgement should be included overall in the presumptive ceiling timeline.

In my view, the trial timemust reasonably include the time before a conviction or acquittal is determined. [19] Justice Eidsvik did not consider the six weeks it took for his decision as exceptional and therefore included it in the overallpresumptive time calculation. [20] In R. v. Hertyk, 2017 ONCJ 641 , Justice Patrice Band treated the date of anticipated end of trial as the end date.

Shehad reserved her decision for over five months for various reasons, which she characterized as an “exceptional circumstances”: Hertyk,para. 16. [21] In R. v Nepinak and Nepinak, 2017 MBQB 134, Zinchuk J. did not include the reserve time in the calculation of total timeelapsed. [22] On November 6, 2017, Judge Keyes of the B.C. Provincial Court handed down her decision on R. v. Hammer, 2017 BCPC 377, in which she followed Justice Joyal’s decision in K.G.K. and R. v. Ashraf, 2016 ONCJ 584. I am bound by the principles ofjudicial comity to consider Judge Keyes judgment.

While no statutory or common law rule compels me to follow the decision of anothertrial judge on a point of law, courts can promote certainty in the law by following the legal rulings of other trial judges. The principle ofcomity and stare decisis direct that a failure to follow a prior decision of another judge of the same court is a disservice to litigants,lawyers and inferior courts, who are entitled to the law as reasonably settled and certain.

It is for the appellate court, not individualjudges of equal jurisdiction, to correct judicial errors. [23] The leading case in British Columbia on judicial comity is Re Hansard Spruce Mills Ltd., (BC SC), in whichWilson J. states: ... I say this: I will only go against a judgment of another judge of this court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. If none of these situations exists I think a trial judge should follow the decisions of his brother judges. [24] I note that Lovett was released on November 17, 2017, 11 days after Judge Keyes released her decision.

Judge Keyes did notconsider the appellate decision of Mamouni, which was released by the Alberta Court of Appeal on October 25, 2017. [25] I will follow the decision of my sister Judge Keyes in holding the reserve period should not be included in the calculation oftime towards the presumptive ceiling. Accordingly, the total elapsed time from the charge date, August 6, 2014 and the end of the trial,June 7, 2017, was 2 years + 10 months +1 day or 1,036 days.

Step Two: calculate and deduct defence delay [26] The Court must deduct from the total delay any delay attributable to the defence by waiver or defence delay-causing conduct:Jordan, para. 60; Cody, para. 22. [27] Defence delay is twofold: delay that is expressly waived by the defence and delay that is “solely or directly” caused by theactions or inaction of the defence: Jordan, at paras. 1, 66 and 113; Cody, at paras. 27 and 8. Delay caused by Defence Waiver [28] Moldaver J. for the majority in Jordan, explained what the Supreme Court means by waiver: [61] . . .

Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have fullknowledge 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 issueof ‘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 inclusionof specific periods in the overall assessment of reasonableness” . . . [Citations omitted] Also see: Cody, para. 27; [29] The Crown bears the burden of proving defence waiver on a balance of probabilities: R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199 at 1228. The Crown submits that when Mr. Hammer applied to adjourn the second trial date (September23 and 25, 2015) his legal counsel expressly waived delay. At the time he waived his s. 11(

b) rights, Mr. Hammer was represented byMr. LeBlond, his legal counsel. I am satisfied Mr. Hammer comprehended what he was doing when waiving the procedural safeguardoffered by s. 11(

b) and appreciated the consequences on the criminal process. [30] The Defence concedes the period from September 23, 2015 until Mr. LeBlond was available to reschedule the trial ought to becharacterized and deducted as defence waiver. The Crown submits this period begins on September 23, 2015 and ends on January 25,2016 - a total of 125 days or 4 months and 3 days. The Crown argues that when an accused explicitly waives delay when adjourning atrial date, then the accused is responsible for all reasonable delay between the adjourned and rescheduled trial dates. Specifically, theCrown argues that even if Mr.

LeBlond was available for trial prior to January 25, 2016, the accused is still responsible for the delay upuntil that date.

[31] Mr. LeBlond argues the Crown failed to prove the Defence was unable to proceed prior to January 25, 2016. I do note on theScheduling Notice of October 5, 2015 (Kaun Affidavit, Exhibit 27), the JCM offered December 1, 2015 as a potential trial date and Mr.LeBlond was not available. [32] In the circumstances I find the total period of delay expressly waived by Mr. Hammer was four months and two days or 124days commencing September 23, 2015 and ending January 24, 2016.

Delay caused by Defence Conduct In Jordan, the Supreme Court held (at para. 113) the Defence ought not benefit from its own delay causing action or inaction. Delaycaused by defence conduct must be solely or directly caused by the accused and includes: a. Delay caused by deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests:Jordan, para. 63; Cody, para. 30; b. Delays in scheduling where the Defence is not ready to proceed or available, where the Crown and Court are available: Jordan,para. 64.

If either the Crown or Court is also unavailable, the delay will not be attributable to the defence: Jordan, para. 64; Cody para.30; and c. Delay caused by other inappropriate defence actions or conduct as found by the trial judge. Defence delay does not includedefence actions legitimately taken to respond to the charges, for example, preparation time, applications and requests that are notfrivolous: Jordan, para. 65. [33] The Crown argues Mr.

Hammer caused 10 months and 22 days delay allocated as follows: Time Period Amount of DelaySeptember 4, 2014 to November 12, 2014 2 months, 8 days (69 days)February 22, 2015 to April 16, 2015 1 month, 25 days (53 day)August 19, 2016 to January 6, 2017 4 months 18 days (140 days)April 6, 2017 to June 7, 2017 2 months 1 day (62 days) September 4, 2014 to November 12, 2014 [34] The Crown submits the period from September 4, 2014 to November 12, 2014 (69 days or 2 months + 8 days) ought to becharacterized as delay caused by Mr. Hammer. The Crown provided Mr.

Hammer’s legal counsel with its initial disclosure on August12, 2014 and its supplemental disclosure on August 20, 2014: Kaun Affidavit, paras. 7 & 14; Exhibits 4 & 14. Mr. Hammer had all thematerial he required to have arraigned this matter on September 4, 2014. This did not occur until November 12, 2014. The Crownsubmits there was no reason for adjourning the arraignment, and therefore the 2 months + 8 day delay in arraigning ought to beconsidered as defence delay. [35] The Defence argues that in this jurisdiction, an accused does not typically arraign until his bail status has been determined.

If anaccused is denied bail, then he is eligible for an expedited trial date. In this case, Mr. Hammer’s JIR was repeatedly adjourned fromAugust 7, 2014 until October 2, 2014, when RAJ Brecknell granted him bail. The Crown acknowledges that in Prince George, there is alocal practice of fixing trial dates after an accused’s bail status has been ascertained; however, argues that in light of Jordan, it is apractice that ought to be revisited. [36] In this respect, the Crown cites Judge Keyes comments at para. 35 of R. v. Hammer 2017 BCPC 377, in which she comments: [35] If [Mr.

Hammer] decided he needed to delay his bail hearing to come up with a bail plan and prepare, that is, of course, hisprerogative, but I fail to see why his choice to delay his bail hearing to October 2nd and then delay arraigning and setting a trial date fora further six weeks for no apparent reason should inure to his benefit and against the public's interest in having the outcome of his trialdetermined on its merits. I find that it is appropriate to attribute 73 of the 103 days' delay from the swearing of the Information to thesetting of the trial date to Mr.

Hammer. [37] In Jordan, the Supreme Court cautioned that not all defence conduct falls within the rubric of defence delay. The Court statesat para. 65: [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, thedefence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applicationsand requests that are not frivolous will also generally not count against the defence. We have already accounted for proceduralrequirements 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. [38] I note Mr. Hammer’s October 2, 2014 Recognizance of Bail is at the last rung of the ladder of release according to the SupremeCourt of Canada in R. v. Antic, 2017 SCC 27 . The Crown opposed Mr. Hammer’s release on any terms and in fact, sought torevoke his bail on Court File 40410. Mr. Hammer was in a reverse onus situation with respect to this matter (Court file 39485-2-C).

TheOctober 2, 2014 Recognizance of Bail required Mr. Hammer provide a $5,000 cash deposit and a surety. He was banished from hishome in Prince George and placed under house arrest at a friend’s residence in Grand Forks. He was unable to perfect his bail untilOctober 8, 2014. [39] I accept it likely Mr. Hammer needed some time to assemble a viable bail plan. The Crown submits that one month after havingreceived Crown disclosure was sufficient time for Mr. Hammer to organize a bail plan and arraign. I note Mr.

Hammer did not receiveall of the Crown’s disclosure until August 20, 2014, which would indicate the one month to which the Crown refers would commence onSeptember 20, 2014, not September 4, 2014.

[40] Mr. Hammer arraigned on November 12, 2014, 98 days or 3 months + 6 days after he was charged. I do not agree that 2 months+ 8 days of this time ought to be characterized as defence delay. I find Mr. Hammer’s efforts to secure his judicial interim release wereactions that should not be characterized as defence delay given the local practice of fixing trial dates after the accused’s bail status hasbeen determined. I do, however, find the delay from October 8 to November 12, 2014, namely, 35 days or 1 month + 4 days, is defencedelay.

February 22, 2015 to April 16, 2015 [41] The first available trial dates offered to the Defence were February 22 and 23, 2015. Mr. Hammer’s legal counsel wasunavailable for those dates, and the trial date was scheduled for April 16 and 17, 2015: Kaun Affidavit, para. 20, Exhibit 17. The Crownsubmits this 1 month + 25 day delay (or 53 days) ought to be considered as defence delay. [42] In Jordan, the majority held (at para. 64) that the defence will have directly caused delay if the Court and the Crown are readyto proceed and the Defence is not. [43] Mr.

LeBlond concedes the defence was not ready to proceed to trial on February 22 and 23, 2015, however, argues the Crownhas not provided any evidence the Defence was not available at any time before April 16 and 17, 2015.

The only evidence before me isthe trial scheduling notice (Kaun Affidavit, Exhibit 17) indicating the dates of February 22 and 23, 2015, were offered to the defence. [44] In Jordan the Supreme Court decried the practice of examining a proceeding on a piece meal basis: [91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precisecalculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether eachstep was reasonably required.

Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All thissaid, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92). [45] It is unreasonable to assume the Court and the Crown can be endlessly available to

schedule a trial in concert with defencecounsel’s ever changing calendar. Even if Mr. LeBlond had some availability between the February and April 2015 dates, I do not findthe Court and Crown ought to have been similarly available. [46] In the circumstances, I am satisfied the 1 month + 25 day period (or 53 days) from the offered trial dates of February 22 and 24,2015 and the set trial date of April 16, 2015, is defence delay. August 19, 2016 to January 6, 2017 [47] The Crown submits the period between August 19, 2016 and January 6, 2017 (4 months + 18 days), ought to be considered asdefence delay.

The trial did not complete on July 8, 2016, and the Crown and Defence sought two additional days of trial. The JudicialCase Manager offered dates of August 17 and 19, 2017. Mr. LeBlond was not available on those dates. [48] I note in the Pre-Trial Conference held September 9, 2016 (Transcripts, Tab 9), Mr. LeBlond indicates he was available for trialin some unspecified weeks in October and November 2016. The JCM notes on September 9, 2016, that I was not available untilDecember 22 and 23, 2016; however, Mr. LeBlond was not available on those dates.

I glean from the Crown’s Supplemental WrittenSubmissions dated January 25, 2018, that had I been available in the Fall of 2016, the trial continuation could have been scheduled inOctober or November 2016. [49] Mr. LeBlond submits defence delay ends when the Defence is available for trial. In this case, Mr. LeBlond was available fortwo to three weeks to continue the trial in October and November; however the assigned trial Judge was not.

In Jordan, the SupremeCourt held that is either the Crown or Court is also unavailable, the delay will not be attributable to the defence: Jordan, para. 64; Codypara. 30. [50] As indicated above, I do not understand Jordan to mean that if at any time the Court and Crown cannot accommodate DefenceCounsel’s schedule, then the clock stops ticking on a period of defence initiated delay. Nevertheless, I agree it is not appropriate to holdthe Defence responsible for delay in this case during the entire period in which I was not available between August 19 and December 22,2016.

I understand from the notations on the Scheduling Notice of September 9, 2016 and the JCM’s email exchange with SharonToombs (Kaun Affidavit, Exhibits 36 and 38) that I was not available after September 16, 2016 until December 22 and 23, 2016. Frommy review of the record of proceedings, I find it reasonable that Court and Crown ought to have been able to

schedule two additionaldays of trial within the period when Mr. LeBlond was available in October and November 2016, with reasonable notice. Accordingly, Ifind defence delay for the period between August 19 and September 14, 2016 (26 days ) and December 22, 2016 to January 6, 2017 (15days), for a total of 2 months + 15 days or 41 days. April 6, 2017 to June 7, 2017 [51] The Crown submits the period from April 6, 2017 to June 7, 2017, should also be considered defence delay.

This 2 month + 1day delay (62 days) arose as a result of the Defence contesting the admissibility of the Crown’s Certificate of Analyst because of theinsufficiency of the Crown’s Notice. In R. v. Hammer, 2017 BCPC 144 , I concluded the Certificate of Analyst was admissibleand stated at paras. 77 and 78: [77] Having considered the authorities cited above in the circumstances of the case before me, I am satisfied on both the civil and thecriminal standard the accused and his counsel were given reasonable notice of the Crown’s intention to produce the Certificates at trial.

There is no evidence or suggestion the Crown tried to hide the Notice and Certificates like a needle in a haystack in voluminousdisclosure. The accused has had ample time to raise any objection so the analyst could be called for cross-examination or prepare for anyissues raised by the Certificates. [78] In my view, to exclude the Certificates on the basis of non-compliance with s. 51(3) of the CDSA would bring the administration of

justice into disrepute if this

section were interpreted so broadly as to impose upon the Crown the additional burden of ensuring theDefence counsel actually scrutinized the disclosure documents it had properly delivered in a timely manner. In conclusion, I find theCrown has satisfied the requirements of s. 51(3) of the CDSA. [52] The background facts, the position and the submissions of the Crown and Defence are set out in R. v. Hammer, 2017 BCPC 144, and I will not repeat them here. The Crown argues the decision to challenge the admissibility of the Certificates of Analystwas neither reasonable nor legitimate. It did not further Mr.

Hammer’s case. It came late in the trial. But for the Defence’s untenableposition, the trial could have concluded on April 6, 2017, rather than June 7, 2017. [53] The Crown submits this was but one example of a Defence tactic aimed at causing delay, the others being the refusal to makereasonable admissions as to continuity and expert evidence. In this regard, the Crown argues the decision R. v. Hammer BCPC 377, isapropos, wherein Judge Keyes states at paras. 68 and 72: [68] Counsel for Mr. Hammer informed me at the outset of the trial that the only issue was whether Mr.

Hammer was in possession ofthe items seized. The Defence made no objections to the admission of any of the exhibits, but no admissions were made with respect tothe continuity of the seized items by the defence, either. Similarly, there was no dispute that the drugs in question were possessed forthe purpose of trafficking. The quantity of drugs, money, packaging, and paraphernalia amply supported the expert opinion to thateffect. However, there was no admission with respect to the expert's report or opinion. [72] I find that Mr.

Hammer's failure to make admissions as to non-contentious matters is inconsistent with a stated desire to have histrial conclude within a reasonable time. It is not an answer to say that the Crown did not seek admissions. If Mr. Hammer did notcontest those issues, he should have admitted them. Otherwise, he cannot complain that the time it took to prove those very non-contentious issues was time that should not have been spent or took too long.

I acknowledge that some of the time spent in examinationand cross-examination of Constable Grieve and Constable Charron was legitimately connected with locating exactly where the itemswere found, but the hours accumulated in laboriously reviewing file numbers on courier slips was simply wasted time in thecircumstances of this case. [54] Mr. LeBlond submits the sufficiency of the service was a legitimate defence he was professionally obligated to challenge onbehalf of his client.

As to the lack of defence admissions, he relies on the following comments of Lamer, C.J. in R.J.S., (SCC), [1995] 1 S.C.R. 451 at para. 3: As I observed in P. (M.B.), supra, at p. 577, "[p]erhaps the single most important organizing principle in criminal law is the right of anaccused not to be forced into assisting in his or her own prosecution" -- the "case to meet" principle.

This principle, I noted, "is perhapsbest described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is afundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms" (p. 577). [55] In this case, while it was true the Defence made no admissions as to the continuity of the exhibits, I did not find Mr. LeBlond’scross-examination irrelevant or prolix. In the case of one exhibit, notably the fishing licence, there was a problem with its continuity. Also, I found nothing untoward about Mr.

LeBlond’s cross examination of the Crown expert. [56] Judge Keyes comments cited above were made after she found the presumptive ceiling had not been breached in thecircumstances of the case before her. Jordan states that if the delay that remains is below the presumptive ceiling, the Defence bears theburden of showing it unreasonable. To do so, the Defence must establish that (1) it took meaningful steps that demonstrate a sustainedeffort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. In the case before her JudgeKeyes was not satisfied Mr.

Hammer tried to expedite the proceedings as reflected in her comments. In this case, the Defence asserts thenet delay is above the presumptive ceiling. Where the presumptive ceiling is breached, the Defence is not obligated to demonstrate ittook meaningful, sustained steps to expedite the proceedings.

Rather, it must refrain from engaging in delay causing conduct. [57] As to the Defence’s challenge as to the sufficiency of the Notice of Intention with respect to the Certificate of Analyst, althoughI dismissed the Defence’s application, I did not find it frivolous and a deliberate and calculated tactic aimed at causing delay. I also notethe Crown and Defence’s submissions on April 6, 2017 took less than an hour near the end of the court day.

I am not persuaded the trialwould have concluded on April 6, 2017, but for the argument on the admissibility of the Certificates of Analysis because the June 7,2017 trial date took a further half day: Kaun Affidavit, para. 52, Exhibit 46. On April 6, 2017 there were also other pressing matters onthe docket on which I was seized. Accordingly, I would not characterize the period between April 6, 2017 to June 7, 2017 as defencedelay. Step Three: determine net delay [58] The Court must determine if the remaining delay (net delay) not caused by the Defence, exceeds the presumptive ceiling:Jordan, para. 67.

If it does exceed the presumptive ceiling, then it is presumptively unreasonable: Jordan, para. 68. [59] The Crown submits the total delay caused by the conduct of the Defence is 14 months and 24 days, inclusive of delay arisingfrom defence waiver.

The Defence admits responsibility for some delay, but not the amount the Crown asserts. [60] I find the total delay caused by defence waiver or conduct is roughly 8 months + 13 days (253 days ) allocated as follows: Time Period Amount of DelayOctober 8, 2014 to November 12, 2014 1 months + 4 days (35 days)February 22, 2015 to April 16, 2015 1 month + 26 days (53 day) September 23, 2015 and ending January 24, 2016 4 months + 3 days (124 days)August 19, 2016 to September 14, 2016 and December 22, 2016 to January 6,2017 1 month + 11days (41days)

Total Defence Delay: [ 61 ] As I find the net delay caused by the Defence is 8 months + 13 days (253 days), the delay from the time of charge to the end of the trial not caused by the Defence is approximately 26 months + 3 days (783 days), which exceeds the presumptive ceiling of 18 months for a provincial court trial. Because it exceeds the presumptive ceiling, it is presumptively unreasonable.

Step Four: rebutting presumed unreasonableness [ 62 ] If the net delay exceeds the presumptive ceiling, the Crown may rebut its presumed unreasonableness by demonstrating “exceptional circumstances”: Jordan , paras. 46-67 or transitional exceptional circumstances: Jordan , para. 96. Exceptional Circumstances [ 63 ] In Jordan , the majority of the Supreme Court defined exceptional circumstances in paras. 69 and 71: [69] 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. . . . [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating an s. 11 (

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. Discrete Events [ 64 ] The Court in Jordan did not attempt to categorize all the circumstances which might be considered a discrete event.

The Court did indicate discrete events may include: a. medical or family emergencies; Jordan , para. 72; b. cases with international dimensions: Jordan , para. 72; and c. unforeseeable or unavoidable developments that arise during the trial: Jordan , para. 73. [ 65 ] At para. 74 in Jordan , Moldaver J. noted that if at trial unforeseeable issues arise at a time close to the ceiling, it would likely be more difficult for the Crown and the court to respond to those issues with a timely solution: [74] 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. [ 66 ] The Crown submits there were exceptional circumstances in this case amounting to discrete events. The July 7, 2016 trial date was adjourned because the courthouse was unexpectedly short a judge and I was assigned to other matters. Some of the July 8, 2016, trial date was also lost.

Because of this event more trial dates had to be scheduled. [ 67 ] The earliest trial date that had to be scheduled was August 17, 2016. The Crown submits the time period between July 8, 2016 and August 17, 2016 (one month and 9 days), be characterized as a discrete event and deducted from the total delay. [ 68 ] The Defence argues the adjournment of the July 7, 2016 trial date was the result of the lack of judicial resources and not a discrete event. I agree with the Defence and I do not find the delay arising from the cancellation of the July 7, 2016 trial date a discrete event.

The trial judge was present as were the parties and their witnesses. The trial could not proceed because the Court was busy dealing with matters other than the continuation of this trial. The record shows that on most of the nine days of trial, the court spent significant time dealing with other matters on the docket which did not engage the Crown or Defence counsels assigned to this case. Complex Cases [ 69 ] Complex cases are those which, by the nature of the evidence or issues, require an inordinate amount of trial and preparation time.

At para. 77, Justice Moldaver elaborates on what sort of evidence or issues may give rise to a complex case: [77] . . . 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-accuseds, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[ 70 ] If, upon subtracting delay arising from discrete events the presumptive ceiling has been reached, the court must consider whether the case was particularly complex, such that the delay is justified. In this case, the Crown acknowledges the case was not particularly complex. I agree. The lack of complexity is apparent from the initial and subsequent two day trial estimate for the trial.

Transitional exceptional circumstances [ 71 ] The Supreme Court anticipated there would be a number of cases that predated its release of Jordan (July 8, 2016) and the trial judge must consider whether the transitional circumstances apply. In Jordan (para. 96) the Court held the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied.

It is presumed the Crown and Defence relied on the previous law until Jordan was released: Jordan , para. 69. [ 72 ] The assessment of whether the transitional exception applies is necessarily contextual, and should account for the manner in which that framework was applied. The Court in Jordan states at para. 96: 96. . . . For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. [ 73 ] At para. 102 in Jordan , the Supreme Court states: [102] Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. [ 74 ] This does not mean that the old Morin test continues to apply to cases currently in the system.

The trial judge should consider whether enough time has passed for the parties to correct their behaviour and for the system to adapt before determining that the transitional exceptional circumstance exists: Jordan , para. 96. [ 75 ] A second “transitional exceptional circumstance” is the existence of significant institutional delay problems in the court’s jurisdiction. Where the case is of moderate complexity in a jurisdiction with notorious institutional delays, the judge should consider that Crown Counsel’s behaviour will be constrained by those delays.

However, “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist”: Jordan , para. 97. [ 76 ] As this case was already in the system at the time of Jordan ’s release, the Court can consider a transitional exceptional circumstance if the Crown establishes that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.

The transitional exceptional circumstance may justify the delay even where the deduction of discrete events does not reduce the delay below the ceiling and excess delay cannot be justified by case complexity: Cody , at para. 67 . [ 77 ] Mr.

Hammer’s case was in the system for 23 months and two days before the Supreme Court released its decision in Jordan . [ 78 ] Under Morin , the reasonableness of the delay is determined by balancing of the following four factors: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including a. inherent time requirements of the case, b. actions of the accused, c. actions of the Crown, d. limits on institutional resources, and e. other reasons for delay; and 4. prejudice to the accused. [ 79 ] Morin (at para. 55 ) suggested a guideline of 8 and 10 months for institutional plus Crown delay in Provincial Courts. [ 80 ] The first step in an s. 11(

b) application under Morin was to determine whether there is a prima facie case of unreasonable delay having regard to the length of the delay, waiver, and reason for the delay. The second step is to consider whether the interest of society to have the accused stand trial is outweighed by the prejudice to the accused. Prejudice can be inferred from the length of the delay but it is not a presumption. The onus is on the accused to prove on a balance of probabilities that he was prejudiced and that the prejudice was serious: Morin; R. v. Godin , 2009 SCC 26 .

The length of the delay [ 81 ] Under the Morin analysis delay is calculated from the date the information was sworn to the end of the trial. As set out above, I find the length of the delay was 1,036 days (34 months + 1 days) and warrants an inquiry and assessment of whether Mr. Hammer’s s. 11 (

b) Charter rights have been violated. Waiver of time periods

[82] Morin directs that where the length of delay triggers an inquiry, the Court will then consider whether the accused has waivedany or all of the delay period. Waiver may be explicit, or implicit from the conduct of the defence giving rise to an inference that theaccused person unequivocally understood his or her rights under s. 11(

b) of the Charter and waived the right. The total period waived isdeducted from the total time elapsed between the date of the charge and the date the trial concludes. If the remaining time period isunexceptional, that is the end of the inquiry: Morin, pp. 24 - 26. The Crown bears the onus of proving a waiver. [83] Consent to an adjournment by defence or agreement to a future date usually amounts to a waiver in the absence of evidence thatthe accused was acquiescing to the inevitable: Morin, para. 38; however, lack of availability of defence counsel does not amount to awaiver in every case: R. v.

Godin, 2009 SCC 26 , para, 23. In Godin, Cromwell J. stated at para. 23: “[s]cheduling requiresreasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in astate of perpetual availability. [84] In this case, I found defence waiver of (124 days) or 4 months and 2 days commencing September 23, 2015 and ending January24, 2016. [85] After deducting 124 days of delay waived by the Defence, the time from the charge to the end of trial is reduced to 912 days(approximately 30 months 12 days).

I find this remaining period unreasonable, and therefore will continue with a balancing of thereasons for the delay and any prejudice to the accused caused by the delay to determine if the remaining period of time constitutesunreasonable delay. [86] The reasons for delay requires the Court to take into consideration: (

a) inherent time requirements of the case; (

b) actions of theaccused; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) other reasons for delay: Morin, p.26. The reason for the delay (

a) the inherent time requirements of the case [87] Under Morin, the Court recognizes there are inherent time requirements to prepare the case for trial. The inherent timerequirements are threefold: (

i) the intake period; (ii) the court time required; and (iii) the complexity of the case. [88] Inherent time requirement is “neutral”. It does not count against either the Crown or the Defence in assessing unreasonabledelay. It simply is deducted from the operative period of delay. (

i) intake period [89] Inherent delay involves case preparation and “intake requirements” such as retention of counsel, bail hearings, disclosure, pre-trial conferences and administrative paperwork: Morin, paras. 41 & 42. The intake period starts when the Information is sworn and endswhen the parties are ready to fix a date for trial. The Crown’s disclosures to the Defence were complete on August 20, 2014, 14 daysafter the information was sworn.

This suggests the initial intake period ought to have been relatively short given the nature of the chargeand the fact the police had completed their investigation. [90] In Morin, the SCC held that the fewer the activities which are necessary and the simpler the form each activity takes, the shorterthe delay. There may be a significant variation between those cases where the accused is summoned to court and those where theaccused, like Mr. Hammer, was arrested and detained: Morin, p. 26-28. I accept in his circumstances, it would take Mr.

Hammer sometime and effort to secure his judicial interim release. [91] In Morin the Court held the length of time for inherent time requirements “will be influenced by local practices and conditionsand should reflect that fact. No doubt the intake period in a particular region will tend to be the same for most offences”: Dass, at para.73, citing Morin. [92] The intake period in this case was lengthened by the local practice of delaying arraignment and fixing trial dates until anaccused’s bail status is resolved. In this case it was not until October 2, 2014 Mr.

Hammer was able to cobble together a bail plan and ittook until October 8, 2014, before he was able to perfect its terms.

I have determined that the appropriate intake period was from August6, 2014 to October 8, 2014, a period of 63 days or 2 months and 2 days. (ii) court time required [93] At the outset, the Crown and defence anticipates this matter would take two days for trial; instead it took approximately 5 daysof court time (assuming 5 hour days) spread over 10 days commencing January 25, 2016 and concluding on June 7, 2017: January 25,2016: 1 hour; January 26, 2016: 4.5 hours; May 2, 2016: 3.5 hours; July 7, 2016 : 0 hours; July 8, 2016: 3 hours; September 15, 2016: 2.5hours; January 6, 2017: 3.5 hours; April 6, 2017: 3.5 hours; May 16, 2017: 1 hour; June 7, 2017: 2.5 hours. (iii) complexity of the case [94] In Morin, the SCC held that in more complex cases requiring a preliminary inquiry and or multiple accused, the Court willaccept a longer inherent time period: Morin, p. 28.

Accordingly, inherent time requirements will vary depending on the complexity ofthe case. [95] This was not a complex case. It did not involve a preliminary inquiry and after November 18, 2015, it proceeded against Mr.Hammer alone. The Defence advanced no Charter challenges beyond this application. The Defence did not call evidence. There weretwo voir dires, one relating to the admissibility of the Certificate of Analyst and the other to expert opinion. These were not lengthy orunduly time consuming.

The Crown had to present evidence on the service of the notice of intention to adduce certificate evidence andon the expert’s qualifications in any event.

Conclusion on inherent time requirement in this case [96] In considering the intake requirements, the court time required and the complexity of the case, the inherent time requirementwould be 2 months + 2 days (or 63 days) had this matter proceeded on the first trial dates, April 16 and 17, 2015. Because the partieswere required to seek new trial dates at least three occasions, there is also some additional inherent time requirement associated withscheduling additional dates mid-trial. (

b) actions of the accused [97] In considering the reasons for delay, the Court must consider whether the accused acted inconsistent with a desire to proceedwith the trial and are therefore inconsistent with an assertion of an s. 11(

b) violation. Voluntary actions of the accused that fall short ofwaiver but nevertheless contribute to delay will be taken into account in evaluating the reasonableness of the delay: Morin, pp. 28-29. This may include change of venue motions, change of counsel, applications to re-elect, attacks on wiretap authorizations, adjournmentswhich do not amount to waiver, challenges to search warrants, etc.: Morin, para. 44.

While the accused is not required to do anything toexpedite his trial, action or inaction which is inconsistent with a desire for a timely trial is something that the court can take into accountin assessing prejudice: Morin: para 62. [98] In R. v. McDougall, (SCC), [1998] 3 S.C.R. 45, where the Court observed: [48] Delays intentionally caused by, consented to or requested by the accused cannot be used in support of a claim that a s. 11(b)violation has occurred: Conway, supra, at p. 1673. Otherwise, there might be an incentive to employ dilatory tactics in order to escapejustice.

However, only those actions of the accused which directly contribute to the delay – such as a request for an adjournment – orwhich constitute a deliberate attempt to delay the trial, will count against an accused. Such actions are inconsistent with a desire toproceed with the trial and are therefore inconsistent with an assertion of an s. 11(

b) violation: see Morin, supra. [49] The Crown bears the responsibility of bringing accused persons to trial: Askov, supra.

This extends to a duty to ensure that thetrial proceedings, once engaged, are not unduly delayed. [99] As set out above under delay caused by defence conduct, I have found the defence responsible for approximately 129 days or 4months + 9 days delay by its conduct: Reason for delay Relevant Period Delay Delay in arraigning October 8, 2014 toNovember 12, 2014 1 month + 4 days (35 days) Rejection of the first trial datesFebruary 22, 2015 toApril 16, 2015 1 month + 25 days(53 days)Delay in rescheduling the July2016 trial dates August 19, 2016 to September14, 2016 and December 22,2016 to January 6, 2017 1 months + 11 days(41 days) Total Delay by DefenceConduct: 4 months + 9 days(129 days) [100] In addition to those periods set out above, the Defence also shares responsibility for delay arising from the need to scheduleadditional trial dates as a result of underestimating the time required for trial.

When he set the third trial date (January 25 and 26, 2016)Defence Counsel agreed two days was a “fair estimate” of the time required for trial based on his review of the file: Transcript,September 18, 2015, p. 3, ll. 14-23. This initial underestimation is one of the reasons the Crown and Defence were having to seekcontinuation dates mid-trial. [101] In addition to the particularized Defence’s delay inducing conduct referred to above, I do not find the Defence was particularlyproactive in bringing this matter to trial.

In Cody, the Supreme Court held (at para. 33) that “Defence counsel are therefore expected to“actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . .us[e] court time efficiently.” In this case, there is scant evidence of Defence counsel raising the issue of delay with the Crown or thecourt or taking active steps to move the matter forwards expeditiously by inquiring into early trial dates.

Other than the Admissions ofFacts comprising Exhibit 22, there is little evidence of the Defence meeting with the Crown in advance of the trial dates in an attempt tostreamline the process. (

c) actions of the Crown [102] Included under this heading are adjournment requests by the Crown, failure or delay in disclosure, and change of venueapplications: Morin, p. 29. These must be actions within the control of the Crown which are not a necessary consequence of thecharging decision. [103] The Crown adjourned the first trial date scheduled from April 16 and 17, 2015 to September 23 and 25, 2015. Mr. Hammer wasself-represented and did not actively oppose the adjournment. Judge Callen ordered the trial would proceed on a date to be set whetheror not Mr. Hammer had legal counsel.

Judge Callen ordered the delay arising from the Crown’s adjournment (5 months + 7 days or 160days) attributable to the Crown: Transcript, April 10, 2015, p. 5. [104] One action on the part of the Crown which contributed to the delay in these proceedings arose from its underestimation of thetime required for trial.

When setting the first and second and third trial dates, the Crown estimated two full court days were required forthe trial, although it had six police witnesses, one expert and 32 exhibits for which continuity was not admitted. [105] The trial was scheduled to complete on January 27, 2016, but did not do so until June 7, 2017, 497 days or 16 months + 11 day

later. Both the Crown and Defence contributed to this delay, as did the Court. In my view, however, the Crown bears a slightly greater responsibility for properly estimating the time it would take to try this case in circumstances where it intended to tender into evidence numerous exhibits seized at the scene with no admissions as to continuity or expert evidence. [ 106 ] Notwithstanding my preceding comments, I find the Crown worked reasonably efficiently and effectively to advance its case before the court, in terms of pre-trial disclosure, trial preparation, witness management and the flow of evidence.

Other than underestimating the time required for trial at the outset, I find the Crown made a reasonable effort to move things along, for example, by requesting the September 9, 2016 pre-trial conference to explore earlier trial dates than the January 6, 2017 date proposed by the Defence. (

d) limits on institutional resources [ 107 ] This category in the delay lexicon is often referred to as systemic or institutional delay and encompasses those time periods between the fix date where a trial date is arranged and the actual trial date less any periods waived by the defence or actions attributable to the defence. It is the Court’s practical recognition that there is a limit on the number of courtrooms, judges and court staff available in any jurisdiction. This factor comes into play when the parties are ready for trial but the system cannot accommodate them.

In Morin , (at p. 31) the Supreme Court recognizes that some allowance must be made for institutional delay, but there comes a point when the courts will no longer tolerate delay based on a plea of inadequate resources. [ 108 ] In Morin , the Supreme Court (at p. 34) set an institutional delay of between eight and ten months as a guide for Provincial Courts. This guideline, however, was not a limitation period or ceiling on delay. It was not intended as a precise or scientific formula.

The applications judge must consider the institutional resources in his or her jurisdiction, the strain imposed on them, statistics from comparable jurisdictions, the opinions of other courts and judges as well as expert opinion: Morin , p. 35. [ 109 ] Sopinka J. held that the guideline set out in Morin (at p. 34) would be influenced by the presence or absence of prejudice in the individual circumstances under consideration: The application of a guideline will also be influenced by the presence or absence of prejudice.

If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to ref

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