R. v. Hammer Date:, 2017 BCPC 377

Citation: R. v. Hammer Date: 20171106 2017 BCPC 377 File No: 40410-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH WILLIAM HAMMER JOANNE BUNNY FAITH POTSKIN TANYA LYNN CROCKER RULING OF THE HONOURABLE JUDGE S. K. KEYES RULING ON DEFENCE APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS (Re: ACCUSED HAMMER) Counsel for the Crown: M. Hajivandi Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: November 6, 2017 Date of Judgment: November 6, 2017

[ 1 ] THE COURT: On April 28th, 2017, I found Mr. Hammer guilty of two counts of possession of a controlled substance, cocaine and heroin, for the purpose of trafficking after a trial that proceeded over seven days commencing February 2nd, 2016. The events giving rise to the charges occurred on May 10th, 2014. Mr. Hammer filed an application on June 7th, 2017, for a judicial stay of proceedings on the ground that his right to a trial within a reasonable time under s. 11(

b) of the Charter of Rights and Freedoms has been breached. This is my decision with respect to that application. Framework [ 2 ] The Charter of Rights and Freedoms guarantees as a fundamental right for all those charged within the Canadian legal system that their trials will be heard within a reasonable time. It is in the interests of all Canadians that this right be rigorously defended by the courts.

In some countries, accused persons are held in custody for years without trial, but even where a person's rights are not actively under attack by the authorities, government financial and organizational decisions, bureaucratic inertia, and an attitude of complacency among justice system participants can contribute to inordinate delays in the justice system. [ 3 ] It is in the interests of all Canadians that trials proceed, in an expeditious fashion, before memories fade and evidence is lost.

For accused persons, having court proceedings hanging over their heads may be stressful and, if they are detained in custody or subject to very restrictive bail terms, arduous. [ 4 ]

Section 11(

b) of the Charter is intended to shield persons from the prejudice that they suffer from having their trial process carry on for too long. If the criminal process carries on too long, the accused person may make application to have the proceedings stayed for the breach of their right to a trial within a reasonable time. On the other hand, for some accused persons, especially if facing an inevitable conviction, any delay that postpones or perhaps prevents that outcome is welcome. However, s. 11(

b) of the Charter is intended to be a shield, not a sword. It cannot be used as a get-out-of-jail-free card. [ 5 ] For many years, the courts have struggled with the assessment of when the length of the trial process becomes unreasonable. Decisions varied across provinces and across the country. In July 2016, the Supreme Court of Canada rendered its decision in R. v. Jordan which attempted to provide some certainty in the system by setting time limits within which trials must be heard. For trials in superior court, the time limit is 30 months.

For trials in Provincial Court, the time limit is 18 months. [ 6 ] Trial proceedings carrying on beyond those limits, except where the delay is attributable to the accused, are presumptively unreasonable and will be stayed unless the Crown is able to satisfy the court otherwise. Prior to the expiry of the time limits, an accused person may still apply for relief for unreasonable delay, but the burden of satisfying the court rests on the accused person. [ 7 ] After Mr. Hammer was convicted but before I heard submissions on sentence, the Supreme Court of Canada rendered its decision in R. v.

Cody , 2017 SCC 31 , on June 16th, 2017. The court in Cody reiterated the importance of the Jordan formula and provided guidance with respect to some of the interpretive issues that arose as a result of Jordan . However, with respect to many of the issues arising in this case, I must turn to decisions of lower courts for assistance. [ 8 ] The overall framework is clear. First, calculate the total delay from the charge to the end or anticipated end of the trial, then deduct delay which is attributable to the defence.

If the time elapsed is under the ceiling, the defence must show the delay is unreasonable and must show that it took meaningful steps to demonstrate a sustained effort to expedite proceedings and that the case took markedly longer than it should have. If it is over the ceiling, the delay is presumptively unreasonable and the Crown must establish the presence of exceptional circumstances. Otherwise, a stay will result. [ 9 ] However, there are a number of cases that were already in the system when the decision in Jordan was rendered. This case is one of them.

For transitional cases, the Crown may satisfy the court that the time required for the system and participants within it to adjust to the change in the law resulting from Jordan justified the delay in question. [ 10 ] In considering whether the delay is justified, the court must apply the framework set out in R. v. Morin in which the seriousness of the offence and the prejudice to the accused played a decisive role.

Where the accused person has suffered actual prejudice resulting from the delay, the Crown is unlikely to satisfy the court that the transitional exception justifies the delay. [ 11 ] The formula set out in Jordan and Cody seems to be a simple and straight forward solution, but one must always be wary of simple solutions to complex problems. They often produce the same result as cutting the head off a hydra. Calculation of Elapsed Time [ 12 ] The first of the many issues that arose in the case at bar was the actual calculation of elapsed time.

There was argument before me about when to start counting and several arguments about when to stop counting. Should counting start the day the accused was arrested or the day charges were laid? Should the counting stop when the evidence and submissions in the trial ended, the day the judge's reasons for conviction are given, or the end of sentencing proceedings? Start Date [ 13 ] The Crown argues that the start date for the calculation of time was the date that the Information was sworn, August 7th, 2014. Mr.

Hammer argued at first that he was placed under conditions from the point of his arrest onward and was prejudiced thereby and thus the start date for the calculation of time should be May 10th, 2014, the date of his arrest. However, upon examination of those release conditions, they turned out to be so minimal as to pose no restriction on his liberty. Eventually, Mr. Hammer conceded that the start date should be the date the information was sworn. That revised position is, in my view, clearly in accordance with the state of the law. In Cody at paragraph 21 , the court refers to R. v.

Jordan as follows: The first step under this framework entails “calculating the total delay from the charge to the [end] or anticipated end of trial” ...

[14] A person is not charged with an offence until an Information is sworn. I agree with the remarks of Madam Justice Fisher in R.v. Akumu, 2017 BCSC 896, as follows: [17]

Section 11(

b) of the Charter provides that any person “charged with an offence” has the right to be tried within a reasonabletime. In R. v. Kalanj ... the majority confirmed that a person is “charged with an offence” within the meaning of s. 11(

b) when aninformation is sworn alleging an offence or where a direct indictment is laid. Pre-information delay is not a factor to consider inassessing whether there is unreasonable delay in bringing an accused to trial under s. 11(b). [15] Thus, I find that the start date for the calculation of time is the date the Information was sworn, August 7th, 2014. End Date [16] Mr. Hammer argued that a trial does not end until the sentencing has completed. In one sense, that is certainly true. The courtis not functus until the sentencing is over.

However, that may not be the end of the trial for the purpose of a delay application. In therecent case of R. v. Dadmand, 2017 BCSC 1644 , the court noted that no appellate authority had provided guidance on thisquestion and held the following: Presumptive Ceiling applies from Charge to Verdict [24] However, judges of this Court have held that the presumptive ceiling applies from charge to verdict. [25] In R. v. Pelletier, 2016 BCSC 2496 at paras. 32 to 34, Kelleher J. held that Jordan established a presumptive ceiling of30 months from the date of charge to the end of the trial.

For the purposes of that ceiling, the trial ends when a verdict is rendered. Theperiod from verdict to the completion of sentencing should be considered independently to determine whether delay during that time wasunreasonable: Pelletier, at para. 42. [26] In R. v. Akumu, 2017 BCSC 896 , at paras. 31 and 36, Fisher J. followed Pelletier, and reasoned that given the variety ofcircumstances relating to sentencing, the 30 month ceiling should not include the time for sentencing.

The court held that for the purposeof applying the Jordan presumptive ceiling, the end of trial is the date of the verdict. [27] Similarly, in R. v. Millar, 2016 BCSC 1887 at paras. 197 to 199, Gray J. held that, ordinarily, the period the courtshould use for comparison with the Jordan presumptive ceiling should end with the date of the verdict.

Gray J. reasoned that when theverdict is announced, the stress and stigma of an unresolved criminal charge will have been resolved with either an acquittal or aconviction and the accused can no longer be prejudiced in mounting a defence. [28] Following Pelletier, Akumu and Millar, and bearing in mind that the sentencing process in this case involves a dangerousoffender hearing set for nine weeks, I conclude that for the purpose of the presumptive ceiling, the trial ended on the date of the verdict.Because the 30 month presumptive ceiling does not apply to this sentencing, it will be necessary to independently assess the period fromverdict to the anticipated completion of sentencing to determine whether during that time unreasonable delay has occurred, or will occur. [17] The Crown argues that in a jury case, the end of the trial would be the rendering of the verdict, but in a judge-alone trial, thetime taken for the preparation of reasons should not be counted.

Thus, the end of the trial is the end of closing submissions which, in thiscase, was March 28th, 2017. [18] In support of that position, the Crown referred me to the decision of R. v. K.G.K., 2017 MBQB 96, a decision of the ChiefJustice Joyal of the Manitoba Queen's Bench which considered whether the time a judge spent on reserved judgment should be includedin the delay to be assessed and accounted for in the presumptive ceiling set out by Jordan.

Noting that in the Morin framework judicialdelay for judgment writing was considered part of the inherent time requirements for a case and was a neutral factor in the delay analysis,Chief Justice Joyal said: [43] For the reasons that follow, I have determined that judicial delay should not be treated under the new framework for s. 11(

b) setout in Jordan. In other words, on the necessary balancing and reconciling of all of the relevant constitutional principles and interests atplay, judicial deliberation time must be excluded from the presumptive ceiling analysis. [44] Both judicial independence and the right to a trial within a reasonable time “constitute essential parts of the Constitution ofCanada”, although neither one “prevails over the other”. See Harvey v. New Brunswick (Attorney General), (SCC). The Supreme Court of Canada noted in Harvey at para. 69 that: 69 ...

Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict bysubordinating one principle to the other, but rather to attempt to reconcile them. [45] The interaction in the present case of the principle of judicial independence and the right to a trial in a reasonable time, requiresthis court to remain mindful that “it is a basic proposition that one part of the Constitution cannot be abrogated or diminished by anotherpart of the Constitution.

I will omit the references. [19] Chief Justice Joyal went on to say: [54] The Crown is on solid ground when it asserts that a bright-line presumption does not provide an adequate or sufficiently nuancedmechanism to resolve the tension between colliding constitutional principles. As a practical matter, were judges subject to thecategorical and unconditional obligation to come to determinations within the presumptive ceilings, the manner in which the case wasconducted or unfolded would determine the manner in which a judge approaches and perhaps makes his own or her own decision.

Inother words, in some cases which might conclude well below the ceiling, a judge would have many months to render well-crafted written

reasons. In other cases which conclude very close to the ceiling, the judge might be left with mere days. [55] It is also worth noting that the inclusion of judicial reserve time in the presumptive ceiling would put both the Crown and the courts in the untenable position of having to

schedule all matters in a manner so as to have them completed many months below the ceiling in order to accommodate potential judicial writing time. As noted by way of example, if as in the present case, nine months (of judicial delay) were considered as a reference point, all Superior Court trials would have to be completed within 21 months, and Provincial Court trials within nine months.

Like the Crown, I do not believe this is what the Supreme Court intended when it provided the identifiable, predictable and certain timelines discussed in Jordan . [ 20 ] Chief Justice Joyal considered two other cases which discussed problems with including judicial decision-making time towards the presumptive ceiling. In R. v. Lavoie , 2017 ABQB 66 , the court held that the time taken by a judge to write reserved decisions is both unforeseeable and unavoidable by the Crown and therefore should be treated as a discrete exceptional circumstance. In R. v.

Ashraf , 2016 ONCJ 584 , the court noted that in any case close to the presumptive ceiling, the time taken by a judge to write the decision might shift the onus and therefore be viewed as an exercise of bias by one side or the other. [ 21 ] I agree with the careful and well-reasoned conclusion of Chief Justice Joyal that although a delay that is so long as to be shocking, inordinate, and unconscionable would violate an accused's right to a trial within a reasonable time, judicial delay falling short of that should not and, in particular, should not be included in the time accumulating towards the presumptive ceiling.

I quote at paragraph 60: To summarize, judicial delay should not be assessed and accounted for by including it under the new Jordan framework and measuring it against the stark and associated presumptive ceilings.

Not only does the Jordan framework not provide a mechanism for adequately balancing and reconciling the relevant constitutional principles at play, the framework – if applied to judicial delay – would give rise to practical problems that would have the paradoxical effect of compromising much of the predictable and certain efficiency and accountability that Jordan was attempting to bring. [ 22 ] In that case, the court held that the nine-month delay in rendering a decision was not shocking, inordinate, and unconscionable and therefore did not constitute unreasonable delay and did not violate the Charter . [ 23 ] In the case at bar, submissions ended on the afternoon of March 28th, 2017.

There was no delay application before the court at that time. I rendered my decision on April 28th, 2017. According to the Crown's calculation of the delay occurring in this case, the time elapsed attributable to the Crown at March 28th, 2017, was 17 months and three weeks. Thus, unbeknownst to me, the shift in onus took place during the time I took to write my decision. Thus, this case is an illustration of the very mischief described in R. v.

Ashraf . [ 24 ] While anyone familiar with the criminal process might be able to calculate the total time elapsed between charge and end of trial, the trial judge will never be in a position to know what portion of that was defence delay or whether there had been exceptional or discrete events unless a delay application has been brought by the defence and all of the evidence upon which such an application might be based is already before the court, a process which will itself delay the end of the trial. Thus, there is no way for a judge to know when a case might be approaching the presumptive ceiling.

Similarly, there is no way for counsel to know what other obligations a judge might have in order to predict the length of judicial delay, especially if no delay application has been filed until after the decision has been rendered. [ 25 ] Should fear of the presumptive ceiling trump the obligation of the judge to give a careful reasoned decision? Should the presumptive ceiling render moot a careful reasoned decision on the merits? I think not. I agree with the reasoning of Chief Justice Joyal in K.G.K .

I find that the one-month delay to render my decision in this matter should not be included in the calculation of time towards the presumptive ceiling. [ 26 ] Accordingly, I find that the end of the trial for delay calculation purposes was March 28th, 2017. Thus, I find that the total delay in this case is from August 7th, 2014, to March 28th, 2017, is a period of 31 months and 21 days or 964 days according to the calculations made by the Crown. Delay Attributable to the Defence [ 27 ] The next batch of issues arises about how to characterize the intervening time. What exactly constitutes defence delay?

Does it mean delay in getting to trial dates or does it include delay in getting to other milestones in the process? Does the defence share responsibility for agreeing to or acquiescing to trial time estimates it later argues were clearly inadequate or is the delay resulting from an inadequate time estimate entirely attributable to the Crown? Does it include conduct within the trial itself? Does it include passive acquiescence or inaction? Does it include the failure to make admissions where the evidence is not contested? Should the time Mr.

Hammer spent diligently seeking to retain counsel be deducted from the delay otherwise attributable to him for being unwilling to proceed with this trial? Delay in Setting Trial Dates and Continuations [ 28 ] Crown counsel argued that of the total delay of 964 days, 423 days should be attributed to the defence leaving a delay of 541 days attributable to the Crown. That is the equivalent of 17 months and three weeks which is under the presumptive ceiling in Jordan .

Those 423 days are allocated by the Crown as follows. 73 of 103 Days Between Information and Arraignment and Trial Fix Date [ 29 ] Crown counsel argued that Mr. Hammer should shoulder 73 days of the 103-day delay from the time the Information was sworn until the trial dates were set. Crown notes that Mr. Hammer had already retained his counsel on or before July 16th, 2014, after his arrest and release and almost a month before the Information was sworn. There is no dispute that substantially all of the disclosure was provided to counsel on August 12th, 2014, a mere five days after the Information was sworn.

Crown argues that 30 days should be allocated as a reasonable period in which to arraign and set trial dates and the rest of the time between the swearing of the Information

and arraignment and the setting of the trial dates should be deducted as defence delay. [30] Mr. Hammer argued that none of the 103 days from the date the Information was sworn, August 7th, to the date of hisarraignment, November 18th, 2014, should be characterized as defence delay. Mr.

Hammer adjourned his bail hearing until October2nd, 2014, in order to prepare a bail plan and then adjourned his arraignment to October 22nd, 2014, at which time his counsel wasunable to proceed because he had not filed a counsel designation form and, as a result, he adjourned the arraignment again untilNovember 18th, 2014. [31] Mr. Hammer argued that in order to set trial dates, he needed to know his custodial status and therefore needed to have a bailhearing.

Because it was a reverse onus situation, he needed time to prepare a bail plan and, in order to do so, he delayed setting his bailhearing which in turn delayed the setting of trial dates. None of that time, he argues, should be characterized as defence delay. [32] Mr. Hammer relied on R. v. Picard, 2016 ONSC 7061 , [2016] O.J. No. 5845, which noted that according to some caseauthority, all more than a decade pre-Jordan, a delay of two to six months was part of a "normal" intake process considered to be"neutral" delay. However, I note that under the Jordan regime, there is no such thing as "neutral" delay.

Under Jordan, any delay that isnot attributed to the defence or towards specific exceptions is by default delay that counts towards the presumptive ceiling. [33] In Picard, the delay occurred because defence counsel was awaiting disclosure before setting up a bail hearing so that he wouldknow the case he had to meet before taking a major step. Such delay might well be attributable to the Crown and thus towards thepresumptive ceiling because it is the Crown's obligation to provide sufficient disclosure so that the defence knows the case it has tomeet. [34] In the case at bar, there is no suggestion that Mr.

Hammer was awaiting disclosure in order to know the case he had to meetbefore taking a major step. Mr. Hammer was in receipt of substantially all of the disclosure on August 12th, 2014, a mere five days afterhe was charged. Mr. Hammer's situation is clearly distinguishable from that in Picard. Mr. Hammer had been released immediatelyafter his arrest on May 10th, 2014. The only reason he found himself in custody was that he was arrested on or about August 7th, 2014,on new charges arising out of committing similar offences while on bail for these offences. He has since been convicted of thosecharges, as well.

His reverse onus situation was, entirely, the product of his own choices. [35] If he decided he needed to delay his bail hearing to come up with a bail plan and prepare, that is, of course, his prerogative, but Ifail to see why his choice to delay his bail hearing to October 2nd and then delay arraigning and setting a trial date for a further sixweeks for no apparent reason should inure to his benefit and against the public's interest in having the outcome of his trial determined onits merits.

I find that it is appropriate to attribute 73 of the 103 days' delay from the swearing of the Information to the setting of the trialdate to Mr. Hammer. 56 Days from February 17th, 2015, to April 14th, 2015, Due to the Unavailability of Mr. Hammer's Counsel [36] Mr. Hammer's counsel was not available for earlier trial dates of February 17th and 20th, 2015, when the Crown and the courtwere available. His first available trial date was April 14th, 2015. Mr. Hammer does not dispute that this delay should be attributed tohim.

Crown Delay from April 14th to July 29, 2015 [37] After this matter was set for trial commencing April 14th, 2015, in accordance with Mr. Hammer's counsel's availability, Mr.Hammer's counsel applied to be removed as counsel of record in January 29th, 2015. The basis for that application was that his counselwas "not sufficiently retained." That application was spoken to on February 11th, at which time, Mr. LeBlond adjourned the applicationto March 11th, 2015, because he had been speaking to his client and believed there was a possibility that he would stay on as counsel.

However, on March 4th, 2015, the matter was again before the court and Mr. LeBlond had the following to say [as read in]: 23 I have tried to resolve some differences 24 between myself and my client over the last month 25 and have been unable to do so. Mr. Hammer has 26 indicated to me that he was unable to travel to 27 Prince George on each of those occasions including 28 today. He has indicated that he is aware of the 29 trial dates and that at this time he is content 30 for the matter to be scheduled with or without 31 counsel.

He says that he will either conduct the 32 matter on his own behalf or see if he can locate 33 alternate counsel before the trial dates. 34 So I'm not seeking to cancel trial dates or 35 anything of that nature, I'm simply indicating to

36 the court that my client is aware of the trial 37 dates; that we are going to be parting ways and 38 that I'm applying to be removed as counsel of 39 record. I'm asking that the matter be reflected 40 to the -- with or without counsel for the trial 41 dates that are currently before the court. [ 38 ] It was on the basis that Mr. Hammer would proceed to trial with or without counsel that Judge Galbraith granted Mr. LeBlond's application to be removed as counsel.

However, on April 10th, 2015, some days prior to the commencement of the trial, the Crown applied to adjourn the trial with respect to the co-accused, Ms. Potskin, due to their inability to serve a required notice upon her, but indicated in its application that it was prepared to proceed against Mr. Hammer on the date scheduled. [ 39 ] However, because Ms. Potskin and Mr. Hammer were charged jointly, the Crown was reluctant to sever the joint trials and thus Crown's application to adjourn was granted and the trial dates were cancelled for both Mr. Hammer and Ms. Potskin.

The Crown does not attribute any of the delay from the April trial date to the next trial date, July 29th, 2015, to Mr. Hammer which was also set on a with or without-counsel basis. 188 Days from July 29th, 2015, to February 2nd, 2016 [ 40 ] After this matter was adjourned from the April 14th, 2015, trial date, it was fixed for trial, July 29th, 2015. On July 28th, 2015, the date before the trial was to commence, Mr. Hammer applied to adjourn the trial on the basis that he did not have counsel. The following day, the date of trial, Mr. Hammer's application to adjourn was eventually granted.

The matter was adjourned to August 4th to fix a date for trial and further adjourned to August 17th, 2015, when the trial date of February 2nd, 2016, was fixed in accordance with Mr. LeBlond's schedule. [ 41 ] Mr. Hammer now argues that some portion of this time should be credited or not attributed to Mr. Hammer on the basis that he was "diligently" seeking to obtain counsel between the time he was aware Mr. LeBlond was seeking to be removed as counsel, February 2015, and the time he got back on the record in early August 2015 thus demonstrating a sustained effort to proceed to trial.

He also argued that the Crown acquiesced to the adjournment and, on that account the delay should not be attributed to the defence. [ 42 ] I will address the latter argument first. When Mr. Hammer made his application to adjourn, the Crown informed the court that it was ready to proceed and had flown witnesses in from out of town for the trial. The Crown did concede that some procedural complexity might arise from them proceeding that day if Mr. Hammer were to retain counsel and advance Charter applications after some of the evidence had already been heard. Mr.

LeBlond made submissions to the court in favour of an adjournment despite the fact that he was not retained and advised the court that, and I quote [as read in]: If counsel were in place, Charter notice would have been provided under s. 8 and there would likely be an application to cross-examine the affiant on the Information to Obtain. I imagine that there would be a lot of backtracking if I get retained before the next date of trial.

Certainly, there are some things that mitigate in favour of simply having this matter called at a different time because a fair number of complexities may arise if we start -- if the trial starts in the absence of counsel today. [ 43 ] It is clear from the transcript of July 29th, 2015, that Judge Gray was concerned about delay and eager to begin the trial. I am not in a position to say whether the suggestion the Charter arguments were anticipated was a stratagem to persuade the Crown and the court to accede to the defence application to adjourn, but it certainly had that effect.

Whether to bring Charter applications or not is, of course, entirely at the discretion of the defence. There were no such Charter applications brought before me. [ 44 ] Ironically, it is one of the arguments made by Mr. Hammer that I should find the time taken to conclude this trial is excessive because of its relative simplicity including the lack of such Charter arguments.

As my father used to say, "You can't suck and blow at the same time." I am not persuaded that the delay incurred by the court's acceptance of a defence adjournment application should be attributed to the Crown. [ 45 ] I now turn to the argument that Mr. Hammer's efforts to seek counsel were so diligent that some of the delay resulting from his adjournment application should not be attributed to him. I note that Mr. Hammer's counsel began seeking to be removed as counsel in January 2015. It is clear that Mr. Hammer was aware of the application and in discussions with Mr. LeBlond by February 11th, 2015.

However, when speaking to Judge Callan on April 10th, 2015, about his difficulties with obtaining counsel, Mr. Hammer had the following to say [as read in]: Well, I own -- I own property. That's why they said I'm not -- not legally entitled to Legal Aid and that's the same with social services which will not help me neither because I own property which right now I haven't made any payments in seven months. [ 46 ] After hearing Mr. Hammer's remarks, Judge Callan said the following [as read in]: But it sounds like you wouldn't oppose these trials being adjourned. MR. HAMMER: No, I was -- I've got no lawyer.

I've got no way of obtaining a lawyer so unless the court can appoint me one, then I will come in there and I will not do anything no matter what until I have a lawyer present. So I'll take another -- I don't know, how -- what -- what would you do about it, though? [ 47 ] Judge Callan then adjourned Mr. Hammer's trial and told Mr. Hammer that the trial would go ahead at the next trial date with

or without counsel. In submissions before me, Mr. Hammer's counsel conceded that Mr. Hammer was not ready to proceed to trial at the April trial date. However, on July 28th, 2015, the day before the next trial date, Mr. Hammer applied to adjourn the trial because he did not have legal counsel. He explained to Judge Gray that he sought an adjournment of the trial because he had no lawyer; that he had been refused Legal Aid because he owned property adding that he had not made any payments on those properties in seven months.

I note those are precisely the remarks he made to Judge Callan three months earlier. [ 48 ] He told Judge Gray that he had been instructed by Legal Aid to write a letter to have his case reconsidered for Legal Aid coverage and that he intended to do that, but it would take three weeks to get a response. I infer from those remarks that Mr. Hammer had not yet, actually sought a reconsideration from Legal Aid. Indeed, when questioned on the subject by Judge Gray, Mr.

Hammer admitted that aside from attending at the Legal Aid office the previous day, his only efforts to obtain Legal Aid coverage had been a phone call to Legal Aid when Mr. LeBlond first sought to be removed as counsel and then another phone call about a month previous to the trial. [ 49 ] In the five months from the time Mr. Hammer's counsel applied to get off the record to the second trial date, Mr. Hammer's efforts to obtain Legal Aid coverage amounted to two phone calls and one visit to the Legal Aid office.

He made no attempt, in all of that time, to apply for a reconsideration. [ 50 ] Judge Gray commented that Mr. Hammer appeared to be taking advantage of the system and specifically told Mr. Hammer [as read in]: You can't be taking advantage of the system to that extent. That's what it appears to me. Too much delay in the matter and it needs to be resolved. You're facing a serious jeopardy. You know that and it appears that you're setting out just -- to just slow things down and delay perhaps an inevitable result and conclusion. Do not do that, sir. It's an abuse of the administration of justice. [ 51 ] Mr.

LeBlond suggested in his submissions that Mr. Hammer was ultimately successful in his application for Legal Aid coverage. Certainly, Mr. LeBlond was retained as Mr. Hammer's counsel no later than August 17th, 2015, when the new trial dates were fixed, that is, within 19 days of his application to adjourn on July 29th, 2015. If Mr. Hammer is to be taken at his word, his financial and property holdings situation in July was identical to that in April. I find he could have obtained coverage by taking the same steps in advance of the April or July dates as he did after the July dates. [ 52 ] Mr.

Hammer argues that I am not bound to take the same view of the matter as did Judge Gray, but the fact is I do take the same view of the matter as Judge Gray. I find that with the exercise of minimal diligence, Mr. Hammer could have retained counsel in time for both the April and July trial dates. I find that Mr. Hammer did not exercise diligence in an effort to obtain counsel. [ 53 ] To the contrary, I find that Mr. Hammer was seeking to delay the trial of this matter by failing to exercise any diligence at all.

The delay resulting from the adjournment of the July 2015 trial date until February 2nd, 2016, the commencement of the trial before me is entirely attributable to Mr. Hammer as defence delay. 36 Days from July 25th, 2016, to August 29th, 2016 [ 54 ] After the trial commenced and after the continuation of July 15th, 2016, Crown and defence were directed to the JCM to fix additional trial dates. At that point, Mr. Hammer's counsel was not available for any continuation dates until the spring of 2017.

The matter of scheduling trial dates was placed before me in July 2016 in an effort to expedite the fixing of continuation dates. Various dates were offered, but Mr. LeBlond was not available. The earliest date on which both defence and Crown were both not available was August 29th hence the attribution of 36 days of delay to the defence. Mr. Hammer does not contest this attribution. Later, Mr.

LeBlond's calendar cleared and continuation dates were set for September 16, 2016, November 1 and November 21, 2016. 50 Days from November 21, 2016, to January 10th, 2017 [ 55 ] After the close of the Crown's case and submissions on November 21, 2016, additional time was required for defence submissions. The earliest date that Mr. LeBlond was available, but the Crown was not, was January 10th, 2017. Thus, the delay of 50 days for that intervening period is attributable to the defence. Mr.

Hammer did not dispute this attribution. 20 Days from January 17th to February 6th, 2017 [ 56 ] The next date on which the Crown and the court were available was January 17th, 2017. Unfortunately, Mr. LeBlond was not available. The delay from that day to February 6th, the next date that Mr. LeBlond was available, but the Crown was not, was 20 days attributable to the defence. Conclusion Regarding the Calculation of the Delay Attributable to Mr. Hammer [ 57 ] For the foregoing reasons, I accept the Crown's calculation of 423 days of delay attributable to Mr. Hammer.

No dispute is taken that if the defence delay is 423 days then it is under the 18-month presumptive ceiling set by R. v. Jordan . Given that finding, it is unnecessary for me to address whether exceptional circumstances or the transitional exception apply to reduce the overall delay below the presumptive ceiling. Burden on Mr. Hammer to Satisfy Me that this Matter Should Be Stayed [ 58 ] It is, of course, open to Mr. Hammer to satisfy the court that the delay in this case, although under the presumptive ceiling, was nevertheless excessive and worthy of a stay of proceedings.

In order to do so, he must satisfy the court that the defence took meaningful steps to demonstrate a sustained effort to expedite proceedings and that the case took markedly longer than it should have. [ 59 ] Mr. Hammer argued that his sustained effort to expedite proceedings consisted of diligently seeking to retain counsel. That argument has been addressed already. I have found that he did not. Although he claimed to have sought to obtain counsel through Legal

Aid, he did not do anything beyond a couple of phone calls for five months through two trial dates. I find, as did Judge Gray, that Mr.Hammer was intentionally seeking to delay the commencement of his trial. [60] Mr. Hammer's arguments in favour of a stay of proceedings focused primarily on whether this trial took markedly longer than itshould have taken and whether Mr.

Hammer was prejudiced by the delay because he was subject to restrictive bail conditions whichobliged him to live far away from Prince George thus burdening him with travel expenses and interfering with his ability to manage hisproperties in Prince George from which he drew his livelihood. [61] I will address, firstly, the argument that this trial took markedly longer than it should have. The defence says this was a simpletrial which should not have taken nearly as long as it did. Mr. Hammer argued that this trial was a simple case with only one live issue,whether Mr.

Hammer was in possession of the drugs in question. [62] The defence argument is that the delay was caused, firstly, by an inadequate trial estimate by the Crown, then by choices madeby the Crown about its order of witnesses, and finally by courtrooms filled with other matters that consumed much of the trial timeallocated to this matter. It is argued that these Crown or institutional choices led to the need for continuation dates which in turn led tothe long delay in this matter completing.

Although there were delays resulting from defence counsel unavailability, the argument is thatthose delays would not have occurred but for the unavailability of court time in the courtrooms on the days actually scheduled. Discussion Regarding Inadequacy of Time Estimate [63] Mr. Hammer argues that the inadequacy of the time estimate is entirely the responsibility of the Crown. No authority wasprovided to me holding that the entire burden of time estimation rests on the Crown.

In my view, both Crown and defence counsel bearthe responsibility to fairly estimate the time required for a trial, but the larger question to be asked is why did it, in fact, take so long if ithad so few contentious issues? [64] The time estimate given to me at the start of the trial on the first day was one day. I was told there would be three witnesses,two officers and one expert. For such a trial, one day might be a fair estimate if non-contentious matters such as continuity of evidencewere admitted and counsel's submissions were similarly brief. [65] It is apparent that Ms.

Yao, the Crown counsel who had conduct of the trial, contemplated that admissions would be made bythe defence or were at least to be canvassed with the defence because she said as much on July 29th, 2015, when Mr. Hammer applied toadjourn the trial, and I quote [as read in]: If Mr.

Hammer retains counsel and were able to have discussions about admissions, there could be a significant amount of evidence fromthe out-of-town officer that we could deal with by way of a filed admission on the trial. [66] I also note that Judge Gray apparently contemplated that more than five hours might be necessary, but directed that the matterbe fixed initially for five hours because that would get a court date sooner than a two-day time estimate and those remarks were made inthe presence of Mr. LeBlond and Mr. Hammer.

Those remarks in and of themselves may explain why this matter was initially fixed forone day. In the circumstances, I am not prepared to find that the insufficiency of a one-day estimate rests entirely on the shoulders of theCrown. [67] Counsel for Mr. Hammer contends and the Crown, not the Crown at trial agrees, that in retrospect one day was clearlyinadequate to hear the evidence and enter all the exhibits. The actual number of court hours taken by this trial was 18 hours, 35 minutes,to the end of submissions by the defence on March 28th, 2017.

Of that time, the entry of the exhibits took 10 hours. [68] Counsel for Mr. Hammer informed me at the outset of the trial that the only issue was whether Mr. Hammer was in possessionof the items seized. The defence made no objections to the admission of any of the exhibits, but no admissions were made with respectto the 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. [69] Because there were no admissions as to continuity, the Crown was obliged to proceed with the tedious, cumbersome, and time-consuming process of proving continuity with respect to each item. Of the 43 exhibits entered into evidence at trial, 40 of them wereitems seized at the scene. Crown counsel chose to call Constable Grieve first because he had flown in from out of town to testify.

Ittook from February 2nd, 2016, until September 16, 2016, at 3:30 in the afternoon of the fourth day of trial for the exhibits to be admitted,first as exhibits for identification through Constable Grieve and then as exhibits proper through the exhibit officer, Constable Charron. [70] The court time spent on this case at that point, as I have said, amounted to just over 10 hours.

The remainder of the evidencetook approximately eight hours, 34 minutes, of which closing submissions consumed two hours and 52 minutes. [71] In Cody, the Supreme Court of Canada instructed us as follows: [33] As well, inaction may amount to defence conduct that is not legitimate ... Illegitimacy may extend to omissions as well as acts(see, for example in another context, R. v. Dixon, (SCC) ... Accused persons must bear in mind that a corollary of the s.11(

b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are thereforeexpected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriateand . . . us[e] court time efficiently” ... [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 items

were found, but the hours accumulated in laboriously reviewing file numbers on courier slips was simply wasted time in the circumstances of this case. [ 73 ] In my view, a reasonable time to have spent on the legitimate issues would have been less than five hours which would have been complete on April 1st, 2016. Had that been the case, the final two trial continuation days would have been unnecessary. The trial would have concluded November 1st, 2016, long before the delay reached anywhere close to the presumptive ceiling.

Delay Resulting from Lack of Court Time During the Trial Necessitating Continuations [ 74 ] Mr. Hammer argued, quite correctly, in my view, that another factor that causes delay particularly in Provincial Court is the competition in terms of court time between the many files scheduled into the courtroom simultaneously. Court administrators and schedulers follow a multiple-booking practice for reasons of administrative efficiency. After all, it is a fact that often matters set for hearing do not proceed whether because of last-minute guilty pleas, absent accused, or stays of proceedings.

Civil matters scheduled into court often settle on the courthouse steps. Often defence counsel

schedule several of their clients' files into the same courtroom on the same day for similar reasons of financial and administrative efficiency. [ 75 ] I take judicial notice of the court practice in this province which includes that the typical multiplier for scheduled courtroom hours is 15 hours of hearing scheduled into a 5.5-hour court day. However, on some occasions and in some regions like this one, it is not uncommon for up to 27 hours of hearings to be scheduled into a court day. This is the reality of Provincial Court.

This system can work well, but if too many cases are piled into court or the cases do not collapse as anticipated, then the delays can and do result. [ 76 ] Both counsel and judges have been accustomed to this reality, but it is a factor that has contributed to the attitude of complacency referred to in Jordan and has resulted in unreasonable delays.

When such delays occur as a result of the court schedulers placing too many hours of hearings or too many files in the courtroom than can be accommodated, such delays due to the "lack of court time" have typically been attributed to the Crown, but what if the delay due to "lack of court time" results from the multiple-booking practices of the defence counsel? [ 77 ] No authorities have been drawn to my attention on this issue, but it seems logical that the party creating the delay should bear some responsibility for it.

This responsibility cannot be avoided by the suggestion that it is the court or the Crown that decides the priority to be given as between one client or another of the defence counsel's clients. Each counsel's cases are set according to his or her calendar.

If that counsel chooses to deal with one client's matters ahead of another client's matters, he or she is acquiescing either expressly or impliedly to the resulting delay on the other client's matter. [ 78 ] It seems to me that the decision to give priority to one client while the other client waits cannot be construed as part of the right to full answer and defence for the one who waits.

I accept that overbooking one's own clients has been a part of the reality of criminal defence practice in Provincial Court just as the practice of overbooking courtrooms generally has been a part of the practice of Provincial Court schedulers for years.

It is not the practice in Supreme Court, and counsel practicing in Supreme Court are expected to make adjustments to their practice to accommodate a single-minded focus on a given client during that client's trial. [ 79 ] It seems to me that the responsibility placed on all parties by Jordan and Cody to minimize delay must result in changes in practice not just for the court, the Crown, and investigative bodies, but also defence counsel. [ 80 ] In this case, the practice of scheduling multiple files into the courtroom simultaneously had an enormous impact on the court time available for the hearing of Mr.

Hammer's trial. As invited by counsel, I have reviewed the court records with respect to this trial in order to confirm my concerns noted on the record during the proceeding. Of the seven days over which this matter carried on, theoretically 38.5 hours of court time, only 18 hours, 35 minutes, were actually spent on this matter. The remaining hours were spent on other matters. [ 81 ] On July 15, 2016, only one hour, 29 minutes were spent on this matter. I expressed my concerns on the record that day about the number of other files scheduled into the courtroom.

However, there is something to be learnt from a closer examination of the other files in the courtroom. [ 82 ] On the first day of trial, Mr. Hammer's counsel's other clients took up one hour, 10 minutes of court time. On the second day of trial, Mr. Hammer's counsel was counsel on all of the five other matters in the courtroom. Thirty-six minutes of court time was used speaking to those matters and the court stood down for 30 minutes awaiting counsel while they had discussion on those files.

Only one of those files, which consumed eight minutes of court time, involved the same Crown counsel as the Hammer matter. [ 83 ] It is abundantly clear that the priority given by Mr. Hammer's counsel to his other clients had a profound impact on the delay accumulated on this matter. The time from those first two days scheduled for the Hammer trial which could have been used on the Hammer matter, but was instead used up on his counsel's other clients was two hours and 16 minutes. [ 84 ] Had that time been used on the Hammer matter, the March 28th, 2017, court date would have been unnecessary.

The trial would have concluded four months earlier on November 21, 2016. Had that been the case, the accumulated delay would not have come near to the presumptive ceiling of 18 months. If it were necessary, I find that it would be proper to deduct the period from November 21, 2016, to March 28th, 2017, a period of 127 days, as defence delay instead of the 70 days attributed to the defence previously in this judgment. [ 85 ] Prior to the release of Jordan , the assessment of unreasonable delay did not focus on the conduct of counsel in the same way that it does now.

The first two days scheduled of the Hammer trial noted above occurred prior to the release of Jordan . In fairness to Mr. Hammer's counsel, I am pleased to observe that after the Jordan decision was released, only 30 minutes of court time scheduled for the Hammer matter continuation was consumed by Mr. Hammer's counsel's other clients. After the problematic July 15th, 2016, trial day, I also made additional efforts to manage the court list so that as little time as possible was consumed by other matters. Of course, managing the court list so that Mr.

Hammer's matter was given priority necessarily meant that other matters were delayed.

[ 86 ] In Jordan and Cody , the court recognized that justice system participants would be taken by surprise, by the ceiling change, in the treatment of delay and acknowledged that for cases spanning the change, there should be a transitional exception to permit the required change to be accommodated. Thus, if I am wrong and the trial time spent by Mr. Hammer's counsel on other clients' files is not to be characterized as defence delay to be deducted from the presumptive ceiling, then I would have taken it into account under the transitional exception had that been necessary. Was Mr.

Hammer Prejudiced by the Delay? [ 87 ] Another batch of questions arose over what exactly might constitute prejudice to Mr. Hammer. Did bail provisions requiring him to live outside of Prince George and the resulting increase in travel cost to attend court constitute prejudice? Does it make a difference if the bail plan was one suggested to the court by Mr. Hammer?

Does it make a difference that the bail terms were only imposed upon him after he was charged with another similar offence for which he has since been convicted? [ 88 ] Restrictive bail conditions have been held to amount to prejudice when they carry on for an unreasonable length of time. It is not disputed that Mr. Hammer chose to live in Grand Forks as part of his bail plan after committing other identical offences to those at bar. The bail terms did not require Mr. Hammer to live in Grand Forks which was a long way from Prince George. They simply required that Mr.

Hammer not reside within a certain perimeter of Prince George. [ 89 ] However, I recall from the trial of this matter that Mr. Hammer owns property in Grand Forks. At least, a property tax assessment in his name with respect to property in Grand Forks was found at the scene in Prince George and was relied on by Mr. Hammer to suggest that he did not have possession of the drugs in question because he was a resident of Grand Forks. Thus, I infer that the choice to reside in Grand Forks as opposed to some closer place was a choice made by Mr.

Hammer for his own convenience as opposed to a choice imposed upon him by the court. [ 90 ] While that choice may have been somewhat expensive for Mr. Hammer in terms of transportation to court, he made that choice as part of his bail plan which included that he reside with a surety who resided there. The fact that he chose to engage in criminal activities here while on release for other criminal activities here and convinced a judge of this court to release him on a bail plan to reside in another community where he had property investments is not, in my view, unduly onerous. At the end of the day, Mr.

Hammer made the choice about where he was to live and with whom he chose to live. He clearly had a significant connection with Prince George given his multiple property investments that he owned here, but he also had investments in Grand Forks. [ 91 ] Mr. Hammer has not provided the court with any evidence at all about how he has been prejudiced. He has simply asked the court to infer from the price of bus tickets from his choice of residence to Prince George that he has been prejudiced. I have no information about how Mr.

Hammer has supported himself in that other community, nor any information about what it cost to live with his surety, nor how his failure to pay what is owed on his various properties in Prince George had any impact on the revenue he received from those properties. Specifically, Mr. Hammer chose to avoid providing any evidence by affidavit or otherwise thus avoiding cross- examination in support of his application.

In the absence of such evidence, I am not prepared to infer any prejudice arising to him out of his bail plan. [ 92 ] Generally speaking, an application for a judicial stay should be made only in the clearest of cases where the administration of justice would be brought into disrepute by a failure to grant a stay. The public has an enormous interest in having cases decided on their merits. In Jordan , the Supreme Court of Canada stated that for cases under the presumptive ceiling a stay should be granted only for clear cases. This is not one of those cases. [ 93 ] In conclusion, Mr.

Hammer has not met his burden to satisfy me that a stay of proceedings is warranted in his case and his application is dismissed. (RULING CONCLUDED)