R. v. Stogrin, 2021 BCPC 313

Citation: R. v. Stogrin 2021 BCPC 313 Date: 20211223 File No: 41492-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL NELSON STOGRIN RULING ON DELAY APPLICATION OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B.Goddard Counsel for the Defendant: G. Simair Place of Hearing: Campbell River , B.C. Dates of Hearing: September 10 & December 16, 2021 Date of Judgment: December 23, 2021 Introduction and Background: [ 1 ] Mr.

Stogrin is charged with the following offences and that: Count 1 – on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did knowingly cause any person to receive a threat to cause death or bodily harm to Joel Volodarsky and Marcy Volodarsky, contrary to

Section 264.1(1) (

a) of the Criminal Code . Count 2 - on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did possess a firearm, a

Remmington 7mm bolt action rifle, while not being the holder of a licence under which he may possess the firearm, contrary to Section 91(1) of the Criminal Code . Count 3 - on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did possess a firearm, Roberts 257 bolt action rifle, while not being the holder of a licence under which he may possess the firearm, contrary to Section 91(1) of the Criminal Code .

Count 4 - on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did possess a prohibited weapon, a stun baton, while not being the holder of a licence under which he may possess it, contrary to Section 91(2) of the Criminal Code . Count 5 -- on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did carry or have in his possession a weapon, a Roberts 257 bolt action rifle, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code .

Count 6 - on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, did carry or have in his possession a weapon, a Remmington 7mm bolt action rifle, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code .

Count 7 – on or about January 3, 2018, at or near Campbell River, in the Province of British Columbia, without lawful excuse did disobey a lawful order of the Court, an order made by a Justice of the Peace in and for the Province of Alberta dated September 26, 2017, contrary to Section 127(1) of the Criminal Code . [ 2 ] Crown stayed Count 4 during the trial. [ 3 ] Mr. Stogrin’s trial was scheduled for three days on October 14, 15, 16, 2020. The evidence in the trial took place on these days in the form of a voir dire .

A continuation date on December 21, 2020 was required for completion of submissions on the Charter arguments raised in the voir dire. My ruling on the Charter issues was delivered on May 6, 2021. I found no breaches of his Charter rights. [ 4 ] The trial was subsequently scheduled for a continuation on September 9 and 10, 2021. The evidence and submissions in the trial concluded on September 9, 2021 with my finding that Mr. Stogrin was guilty on Counts 2, 3 and 7. He was acquitted on Counts 1, 5 and 6. On September 10, 2021, but before submissions, Mr.

Stogrin brought an application to have the proceedings and convictions stayed on the basis of unreasonable delay which infringed his right to a trial within a reasonable time contrary to s. 11 (

b) of the Charter . [ 5 ] Supplemental submissions were provided on October 5, October 12, December 20, December 21 and December 22, 2021. [ 6 ] In addition to the usual issues in a Jordan delay application, the facts of this case raise an issue that does not appear to have been squarely dealt with by the courts in this Province: whether or not mid-trial rulings that are reserved are included in the Jordan ceiling of eighteen months. The Legal Framework: [ 7 ] It is helpful to set out the basic principles governing my assessment. Justice Weatherill, in R. v.

Aeishele , 2021 BCSC 801 , at para. 14 , nicely summarizes these principles as they apply to Supreme Court which, but for the thirty month ceiling are applicable to proceedings in Provincial Court: Jordan was intended to address the systemic culture of delay that existed in the criminal justice system. The s. 11(

b) framework under Jordan now imposes a 30- month ceiling in the Superior Court system which, if exceeded after taking into account defence delay, will result in a presumption of unreasonable delay in the accused’s right to a trial within a reasonable period of time: Jordan, at paras. 46–48, 60. If the net result exceeds the 30-month presumptive ceiling after deducting any delay attributable to or waived by the defence, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances: Jordan, at para. 68.

Exceptional circumstances are those lying outside the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable and the Crown could not reasonably remedy the resulting delays once the unforeseen circumstances arose. The delay attributable to such events is subtracted from the total period of delay to determine if the 30-month ceiling has been exceeded: Jordan, at paras. 69–76.

The presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling: Jordan, at para. 81. [ 8 ] Jordan established in Provincial Court that the presumptive ceiling is 18months and time starts from the date the Information was sworn until the conclusion of trial. [ 9 ] Delay will be attributed to the defence if the Crown is ready to proceed, but the defence is not: R v. Jordan, 2016 SCC 27 at para. 64 . Delay can be waived either explicitly or implicitly by the defence but it must be clear and unequivocal: Jordan para. 61 .

Deductible delay caused solely by the conduct of the defence does not include non-frivolous applications and requests. Trial judges must be careful not to second guess steps taken by defence counsel taken to respond to charges: R. v. Cody, 2017 SCC 31 at para. 31 . Procedural requirements have been accounted for in this ceiling: Jordan , para. 65 . [ 10 ] Exceptional circumstances are those that lie outside the Crown’s control because they are reasonably unforeseeable or reasonably unavoidable and Crown cannot reasonably remedy the delay from those circumstances.

They do not need to be rare or “entirely uncommon”: Jordan , para 69 . These circumstances can be discrete events, Jordan , para. 73 : Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable

and may therefore amount to an exceptional circumstance. [ 11 ] With the legal framework in mind, I turn now to the circumstances and background of this case. History of the Proceedings: [ 12 ] The history and timeline of the proceeding is as follows: January 3, 2018 Mr. Stogrin was arrested and held in custody; January 4, 2018 The Information was sworn; January 5, 2018 Mr. Stogrin’s made his first appearance in court with counsel and his case was adjourned to January 8, 2019 to allow counsel to review the file and prepare a bail plan; January 8, 2018 Mr.

Stogrin appeared in court with counsel and was not ready to proceed with a bail hearing and requested that his matter be adjourned to January 9, 2018 for a bail hearing. January 9, 2018 to February 27, 2019 [ 13 ] On January 9 2018, Mr. Stogrin appeared in court with his counsel. His counsel was putting together a bail plan but was encountering difficulty including challenges contacting and arranging for potential sureties. Mr. Stogrin adjourned his bail hearing to January 12, 2018. His matter was brought back into court on January 12, 2018 and, on that day, Mr.

Stogrin discharged defence counsel shortly before Mr. Stogrin appeared in the courtroom. Mr. Stogrin indicated that he wished to retain new counsel. Crown counsel advised the court that a crisis nurse had seen Mr. Stogrin and there were no concerns about his fitness for police cells. However, based on his emotional state and behaviour in the courtroom as well as the circumstances of the offences and additional background information, the court ordered an NCRMD assessment. The matter was adjourned to February 5, 2018 for a NCRMD report and also to allow Mr.

Stogrin to retain new counsel. [ 14 ] He was able to do so fairly quickly and on January 31, 2018, Mr. Stogrin’s second defence counsel filed a Consent Remand adjourning his matter from February 5, 2018 to February 19, 2018 to allow time to arrange a bail plan. In the meantime, the NCRMD report was prepared and filed on February 15, 2018. Defence counsel scheduled a bail hearing for February 27, 2018. Mr. Stogrin’s bail hearing took place on that day and he was released on a Recognizance with a surety and a number of conditions. February 27, 2018 to April 9, 2018 [ 15 ] Mr.

Stogrin adjourned his matter a number of times before entering a not guilty plea on April 9, 2018. Defence counsel had requested an adjournment until March 12, 2018 for an appearance in the Initial Appearance Court. On March 9, 2018, defence counsel filed a Consent Requisition to adjourn the March 12, 2018 date to March 19 2018. Crown says, and I accept, the Requisition stated: “This is a defence adjournment.

The delay is on the defence (delay waived for this appearance).” [ 16 ] Between March 19, 2018 to April 9, 2018 defence counsel filed a Counsel Designation Notice and indicated an election to Supreme Court Judge alone with a preliminary inquiry. Defence counsel filed a Statement of Issues and Witnesses for the preliminary inquiry and the matter was adjourned to March 27, 2018 before the Judicial Case Manager to fix a date for a preliminary inquiry hearing.

However, the Information was not endorsed as being by Indictment, Crown never elected to proceed by Indictment and an election was not available on this matter. On March 22, 2018, defence counsel filed a Consent Requisition to change the March 27, 2018 appearance to April 9, 2018 “to fix election date as matter is not Indictable”. [ 17 ] On April 9, 2018, Mr. Stogrin, through his counsel who appeared as his agent, entered a not guilty plea and requested a one and a half day trial. The matter was adjourned to the Judicial Case Manager’s office on April 17, 2018 for the trial to be scheduled.

December 21, 2018 to January 30, 2019 [ 18 ] A trial date of December 21, 2018 was offered but declined because defence counsel was not available. Mr. Stogrin’s trial was scheduled to proceed on January 30, 2019 for one and a half days. January 30, 2019 to March 25, 2020 [ 19 ] On January 30, 2019, Mr. Stogrin appeared on the first day of his trial but on that day discharged his counsel for the second time. He requested and was granted an adjournment and the matter was adjourned to February 11, 2019, before the Judicial Case Manager, to allow Mr. Stogrin time to retain new counsel. [ 20 ] On February 7, 2019 Mr.

Stogrin retained Mr. Simair as counsel. Interim court appearances occurred and the matter was adjourned a number of times by counsel while he obtained the file, communicated with Crown and took instructions. On May 7, 2019, defence counsel sent an email to Crown counsel advising that he would be arguing the arrest and the vehicle search violated s. 8 and 9 of the Charter, the police had insufficient grounds to arrest and detain Mr. Stogrin and the search exceeded the parameters of one incidental to arrest. [ 21 ] On May 14, 2019, the trial was scheduled for two days - initially March 11 and 12, 2020.

For an unknown reason, on the same day, the Judicial Case Manager removed these dates and rescheduled the trial for March 25 and 26, 2020. I assume this was a scheduling error. In any event, the trial was scheduled to proceed on March 25 and 26, 2020. [ 22 ] On January 7, 2020, defence counsel provided Crown with a two page letter outlining in more detail, the Charter arguments that would be raised at trial. In this letter, defence also raised the assertion that the pinging of Mr. Stogrin’s cell phone was an unreasonable search and seizure, warrantless and without lawful authority.

Counsel would have been aware that a voir dire would be necessary for

evidence relating to the alleged Charter breaches. March 25, 2020 to October 14, 2020 [ 23 ] On March 16, 2020, due to the COVID-19 pandemic and the declared state of emergency, the trial scheduled for March 25 and 26, 2020 was adjourned according to the directions of the Office of the Chief Judge. [ 24 ] On June 10, 2020, a pre-trial conference occurred and, following discussions with both counsel, the matter was scheduled for three days of trial. Defence counsel requested the earliest possible trial dates and the trial was scheduled for October 14, 15 and 16, 2020.

October 16, 2020 to December 21, 2020 [ 25 ] The trial took place on October 14, 15 and 16, 2020. Mr.

Stogrin brought a Charter application and an application to exclude evidence pursuant to s. 24 of the Charter on the following basis: His arrest was without objective reasonable and probable grounds, was unlawful and a breach of his s. 9 Charter rights; The search of his vehicle was unlawful and therefore unreasonable and a violation of his s. 8 Charter rights; Even if the search was lawful, it was still a breach of s. 9 because it was not truly incidental to arrest; The pinging of his cell phone without a warrant was a breach of his reasonable expectation of privacy and a breach of s. 8 of the Charter ; Furthermore, the pinging of Mr.

Stogrin’s cell phone without a warrant was contrary to the Personal Information Protection and Electronic Documents Act, S.C. 2000 , c. 5 ( PIPEDA ); The pinging of his cell phone was warrantless and the Crown had not established the requisite presence of exigent circumstances. [ 26 ] The entire trial over these three days was conducted in the form of a voir dire to determine the Charter issues. The trial could not be concluded on October 16, 2020.

On October 16, 2020, Crown closed its case in the voir dire and defence counsel made his submissions. [ 27 ] Following discussion with counsel, a three hour continuation was determined to be necessary for Crown submissions and Mr. Stogrin’s reply. Crown counsel submits that he and defence counsel were in communication with the Judicial Case Manager about a continuation date for submissions on the voir dire and November 13, 2020 was offered. Crown was available but defence counsel was not agreeable to that date because another charge involving Mr.

Stogrin was scheduled to proceed on that date and defence counsel did not want the trial judge to preside over another charge involving Mr. Stogrin during the trial on the current matter. [ 28 ] Mr. Stogrin says that an alternative continuation date of November 9, 2020 was offered but apparently was “lost” while Crown was determining if he would be available. Crown says that when the November 13, 2020 date was declined by defence counsel, November 9, 2020 was suggested by defence counsel as an alternative, but Crown had to confirm if he could change his

schedule to allow him to appear. He subsequently confirmed that he was available on November 9, 2020. However, this date was never actually scheduled. [ 29 ] The continuation of the trial was scheduled to December 21, 2020. Submissions were concluded that day and took approximately three hours. The decision on the voir dire was reserved. December 21, 2020 to May 6, 2021 [ 30 ] On May 6, 2021, a written ruling on Mr. Stogrin’s Charter applications was provided with the result Mr. Stogrin’s Charter applications were dismissed.

The matter was adjourned to the Judicial Case Manager to fix a date for a two day continuation for the remaining evidence and submissions. September 9 and 10, 2021 [ 31 ] The first dates offered were September 9 and 10, 2021. On August 11, 2021, before the trial continued, Mr. Stogrin filed an application for a judicial stay of proceedings based on delay. On September 9, 2021, I ruled that the trial should continue first and it re- commenced on September 9, 2021 with Crown intending to call two additional witnesses: a police officer to give evidence regarding his Cellebrite analysis of Mr.

Stogrin’s cell phone and a firearms expert. [ 32 ] On the morning of September 9, 2021, Mr. Stogrin objected to one police officer, Cst. Vose, giving evidence regarding the results of the Cellebrite analysis of Mr. Stogrin’s cell phone. He argued that this was expert evidence and Crown had not given proper notice. This required counsel stand down to consider the merits of the objection. I asked counsel for case authority on this point.

Ultimately, Crown decided not to call evidence from this officer, which shortened the overall length of the trial. [ 33 ] The remaining witness for Crown testified and, after hearing submissions from counsel, I found Mr. Stogrin guilty on Counts 2, 3 and 7. He was acquitted on Counts 1, 5 and 6. Count 4 had previously been stayed by Crown. [ 34 ] Submissions regarding the delay application were made on September 10, 2021 with additional written submissions provided on October 5, October 12, 2021. I asked for additional submissions and received supplemental submissions on December 20, 21 and 22, 2021.

Analysis and Discussion: [ 35 ] Mr. Stogrin and Crown agree that the total delay from January 4, 2018 (the date the Information was sworn) to the end of the

first day of evidence and submissions in the trial (September 10, 2021) is 1,344 days - a little over 44 months. If, after deducting defence delay, it is still over the 18 month limit, it is presumptively unreasonable and it falls to Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and they cannot reasonably be remedied. [ 36 ] In his first supplemental argument, Mr.

Stogrin used the following calculation: If defence delay is assessed as the time between December 21, 2018 to March 11, 2020 for a total of 446 days, a net delay of 898 days results. If the response to the COVID Pandemic requiring an adjournment of the trial between March 25, 2020 to October 14, 2020 is considered exceptional delay, this results in a deductible time period of 203 days. This brings net delay to 695 days or, a little over 22 months.

And, what he refers to as “hypothetical delay” (the argument that defence underestimated the trial length) between October 16, 2020 and December 21, 2020 a time period of 66 days is deducted, this results in a net delay of 629 days, or 20 months and 20 days, which is still over the presumptive limit. January 9, 2018 to February 27, 2018 (49 days) [ 37 ] Mr. Stogrin’s calculation does not include the delay commencing on January 9, 2018 when Mr. Stogrin was scheduled to proceed with his bail hearing but was not ready to proceed.

On January 12, 2018, he discharged his first counsel and which resulted in a number of additional adjournments. Mr. Stogrin was not ready to proceed with a bail hearing until February 27, 2018. Crown was available throughout. [ 38 ] Crown asserts that the entire time between January 9, 2018 and February 27, 2018 is defence delay because Mr. Stogrin was not ready to conduct a bail hearing and discharged his counsel. [ 39 ] However, the thirty four day period between January 12, 2018 and February 15, 2018 was due to the court ordered NCRMD assessment and report. During this time, Mr.

Stogrin was taken to, and assessed at, the Forensic Psychiatric Hospital. This time period is not one that should be characterized as defence delay. It was not due to defence waiver or conduct but as a result of the court’s concerns for Mr. Stogrin’s mental condition during the time of the offence and while in court. It was beyond the control of Crown and they could do nothing to mitigate this delay. I would characterize this as exceptional delay. I deduct thirty-four days as a discrete exceptional circumstance. [ 40 ] I attribute the remaining fifteen days to defence delay when Mr.

Stogrin adjourned his case a number of times because he was not ready to conduct his bail hearing, but, in particular, because he discharged his counsel on January 12, 2018, which necessitated further adjournments. February 27, 2018 to April 9, 2018 (42 days) [ 41 ] Crown says that the time between February 27, 2018, the day of his bail hearing, and April 9, 2018 when he entered his not guilty plea, is defence delay because Mr. Stogrin adjourned his matter a number of times. Not all delay caused by defence conduct will be deducted. Mr.

Stogrin’s right to make full answer and defence required that he and his counsel be permitted time to prepare and present its case. Only conduct which is solely or directly caused by Mr. Stogrin and “flow from defence action that is illegitimate insomuch as it is not taken to respond to the charges” is properly deducted: R. v. Cody , 2017 SCC 31 at para. 30 . The manner in which steps are taken by the defence may attract scrutiny and “may be deemed not legitimate in the context of a s. 11 (

b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay”: Cody , para. 32 . [ 42 ] Following the bail hearing, Mr. Stogrin’s new counsel adjourned the matter a number of times. It was not until April 9, 2018, when Mr. Stogrin entered a guilty plea, that a trial date was requested. Defence counsel expressly waived delay when the matter scheduled for March 12, 2018 was adjourned to March 19, 2018, a period of seven days.

Thereafter, an improper election was made on March 19, 2018 which ultimately required defence counsel (not current defence counsel) to adjourn the matter to April 9, 2018, a period of twenty one days. This totals twenty eight days. [ 43 ] Mr. Stogrin discharged counsel on January 12, 2018, which was very early in the proceedings and I expect that his newly retained counsel required time to take proper steps in the case but the incorrect election is one of the steps I consider as marked inefficiency. I attribute a total of twenty eight days to defence delay during this period.

December 21, 2018 to January 30, 2019 (40 days) [ 44 ] December 21, 2018 was offered for trial but defence counsel was not available. The trial was scheduled to January 30, 2019. Crown and Mr. Stogrin agree that this block of time is defence delay because defence counsel was not available on an earlier date when Crown and the court were. Accordingly, forty days will be deducted as defence delay. January 30, 2019 to March 25, 2020 (420 days) [ 45 ] Mr. Stogrin discharged his counsel on the first day of the trial – January 30, 2019 which necessitated an adjournment. Mr.

Stogrin says that the time between January 30, 2019 and March 11, 2020 is defence delay and amounts to 406 days. The first day the trial was scheduled was March 25, 2020 and is the appropriate date to assess time periods. I accept Crown’s calculation of 420 days. I agree that this is defence delay caused by Mr. Stogrin and, accordingly, I attribute this period of 420 days to defence delay necessitated by Mr. Stogrin discharging counsel for the second time. March 25, 2020 to October 14, 2020 ( 203 days)

[ 46 ] On March 16, 2020, the Chief Judge of the Provincial Court ordered that in person criminal proceedings would be adjourned due to the public emergency caused by the COVID-19 virus and Pandemic. Mr. Stogrin accepts that this was an unforeseen event and beyond the control of Crown and is an exceptional circumstance. However, he asserts that it does not follow that this entire period is automatically deducted.

He says that the Crown has the burden to show that this delay could not have been reasonably mitigated. [ 47 ] What circumstances will be characterized as “exceptional” is not a closed category and a determination will draw on “the trial judge’s good sense and experience”, and, generally, they will be either discrete events or particularly complex cases: Jordan , para. 71 . [ 48 ] The Provincial Court instituted a number of procedures to mitigate the effects of the large number of adjournments occasioned by the Pandemic and public health orders.

Numerous and regular Notices to the Profession issued from the Chief Judge to advise counsel and litigants of the steps taken by the court to resume operations as quickly as possible including virtual and remote appearances where possible. A pre-trial conference process was instituted and intended to streamline matters by attempting to resolve appropriate cases, identify issues and assess the time a case would realistically require for trial. [ 49 ] Mr. Stogrin’s pre-trial conference took place on June 10, 2020. As a result of the pre-trial conference, the trial time required for Mr.

Stogrin’s case was increased from two days to three days. I am satisfied it has been established that the Provincial Court took all reasonable steps to mitigate the consequences of the unforeseen Pandemic. [ 50 ] I attribute this entire period to exceptional circumstances and which could not be mitigated by Crown. Accordingly, 203 days will be deducted as an exceptional circumstance. October 16, 2020 to December 21, 2020 (66 days) [ 51 ] The trial did not conclude on October 16, 2020 and a continuation was set for December 21, 2020. Mr.

Stogrin takes the view that the time between October 16, 2020 and December 21, 2020 should not be deducted. Crown in both its first and supplemental submission emphasized that the need for the trial continuation which resulted in the adjournment from October 16, 2020 ultimately to December 21, 2020, was due to inadequate time estimates by counsel. It says Crown was not able to predict the length of cross- examination or the length or nature of defence submissions.

Crown initially asserted that periods of delay required to complete the trial/ voir dire between November 13, 2020 and December 21, 2020, a period of thirty eight days, should be deducted as defence delay for not taking an earlier available date. [ 52 ] In supplemental submissions, Crown amended that approach and took the position, while continuing to assert that the delay was due to inadequate time estimates, that the entire period between October 16, 2020 and December 21, 2020 should be characterized as an exceptional circumstance and deducted. [ 53 ] I have had the benefit of submissions from Mr.

Stogrin which included two affidavits from defence counsel’s legal assistant, Ms. de Wet. I expect in anticipation of the submission regarding inadequate time estimates, Ms. de Wet in both affidavits, reviewed the court clerk notes for those days and calculated the number of minutes in the courtroom throughout each day that were devoted to Mr. Stogrin’s trial. Mr. Stogrin asserts that his trial took 16 hours and 46 minutes of court time to hear. He says that “there are around five hours a day to hear evidence and argument” and “which is 15 hours of trial time”.

Therefore, he asserts, the trial estimate was for three days and the actual time was only an hour and 46 minutes more than initially estimated. In fact, he says “this was a remarkably accurate estimate”. [ 54 ] Ms. de Wet’s first affidavit, at paragraph 15, states that court sat for four hours and fifteen minutes on October 14, 2020; three hours and thirty-eight minutes on October 15, 2020; and three hours and twelve minutes on October 16, 2020. However, these time calculations did not reflect time during which the court “stood down” while counsel needed time to address other issues in this trial.

For example, at the end of the day on October 14, 2020 the court adjourned a few minutes earlier due to confusion between the document that defence counsel had and the one the witness has. Another example is the morning of October 15, 2020 when submissions were given about one of the counts on the indictment. A further example is that on September 9, 2021, Ms. de Wet deposes that the court heard the Stogrin trial for two hours and 57 minutes but this does not reflect the “stand down” time for counsel to address evidentiary issues and objections raised by Mr. Stogrin in relation to Cst.

Vose’s evidence. [ 55 ] The first affidavit gave the impression that the court sat that day for only those hours and minutes. As I advised counsel during argument on this application, this appeared misleading and someone reading this affidavit would have the impression that the court was only in session, for example, on October 15, 2020, for three hours and thirty eight minutes.

That was not accurate. [ 56 ] I have had the benefit of the court clerk’s log notes appended to Ms. de Wet’s first affidavit as well as the complete clerk’s notes for all three days of trial and September 9, 2021, which were provided to both counsel on December 16, 2021 for further submissions. [ 57 ] During the trial on October 14 to 16, 2020, Crown called two civilian witnesses and four police officers. All the witnesses were subject to extensive cross examination by defence counsel.

At the conclusion of the third day, October 16, 2020, the Crown called two police witnesses which took up little court time and the Crown closed its case in the voir dire at approximately 10:30 a.m. Defence called no evidence in the voir dire . [ 58 ] Submissions from defence counsel began that morning and continued in the afternoon. [ 59 ] In his first supplemental submission, Mr.

Stogrin suggests that the matter was adjourned on October 16, 2020 because Crown wanted more time to respond to the defence submissions. [ 60 ] In fact, defence submissions took until 4:20 pm on October 16, 2020, leaving no time for Crown to provide submissions in reply. [ 61 ] Court was in session during each of those three days but, as it often the case in this jurisdiction, other matters were scheduled into the courtroom and reduced, to some extent, the amount of time that was available exclusively for this trial.

I agree with Crown’s second supplemental submissions that on October 14, 2020, the entire day was devoted to Mr. Stogrin’s trial. On October 15, 2020, the court dealt with four other matters at 9:30 am which took approximately thirty minutes. The remaining day was exclusively devoted to Mr.

Stogrin’s trial. On October 16, 2020, at 2:00 pm, the court dealt with a brief criminal matter and also delivered reasons for judgment involving an individual in custody all of which took approximately one hour. The remaining time was devoted to Mr. Stogrin’s trial. In total, approximately one hour and thirty minutes over the three days of trial involved other matters and the additional time needed for other matters was not significant. Mr.

Stogrin’s trial was given priority throughout this time. [ 62 ] An additional three hours of court time on December 21, 2020 was required to complete the submissions on the Charter issues raised in the trial/ voir dire . [ 63 ] With the exception of approximately one and a half hours, Mr. Stogrin’s trial occupied three and a half days of court to complete the trial/ voir dire and submissions on the Charter issues. [ 64 ] The primary reason for the need to have a continuation on December 21, 2020 was that the trial estimate of three days was inadequate.

A substantial contributing factor was the lengthy cross examinations of Crown witnesses by defence counsel on October 14, 15 and 16, 2020. [ 65 ] On October 16, 2020, Mr. Stogrin provided two written outlines of his Charter arguments. One was devoted to the ping of his cell phone with particular focus on the PIPEDA argument.

This argument, in my view, led to the lengthier cross examinations and submissions by defence and contributed significantly to the need to adjourn to December 21, 2020 for a continuation of submissions in the trial dealing with all the Charter issues raised in the voir dire . [ 66 ] A lengthy cross examination was conducted of Cst. Doerr including a number of questions relating to her understanding of police training about obtaining search warrants and when they can request that a cell phone be “pinged”. There were questions about the written police guidelines, what Cst.

Doerr did when she requested a “ping” and the role of the dispatch operator. She was questioned about a memorandum dated from 2015 dealing with abandoned 911 calls.

The cross examination about her training in relation to “pinging” cell phones and search warrants continued on the second day of trial. [ 67 ] In the end result, the PIPEDA argument was not relevant to my determination, which centered on whether or not the warrantless search - the ping - was justified on the basis that there were exigent circumstances. [ 68 ] The court in Jordan explicitly recognized that trials are “not well oiled machines” and invariably, issues will arise that require rulings by the court. Evidentiary objections may be made that were not expected.

As if often the case, a number of evidentiary issues arose in this case that required time for counsel to address, including while court stood down. On October 15, 2020, Mr. Stogrin objected to Cst. Hobbs’ evidence that an object located during the search of Mr. Stogrin’s vehicle was a stun baton on the basis that it was expert opinion evidence and no notice had been provided. The trial was stood down while Crown considered its response.

Another issue arose when Crown directed a stay of proceedings on Count 4 and then later, realizing an error had been made related to the issue, attempted unsuccessfully to take steps to recommence the proceedings on that count. [ 69 ] Following the delivery of the ruling on the Charter issues on May 6, 2021, after discussion with counsel, another one and a half day continuation was scheduled for September 9 and 10, 2021 to allow the Crown to complete its case in the trial proper and for submissions.

Clearly, three days was an insufficient time estimate for the trial. [ 70 ] In her second affidavit, Ms. de Wet deposes that on September 9, 2021, in total, the evidence the court heard required 2 hours and 57 minutes. However, this does not reflect that when the trial resumed on September 9, 2021, Mr. Stogrin objected to the evidence of Cst. Vose on the basis that it was inadmissible expert opinion evidence and no notice had been given. The trial was stood down for counsel to consider this issue, research the law and obtain more information from Cst. Vose.

In the end, Crown elected not to proceed with this witness. [ 71 ] On September 9, 2021, court started at 9:34 am and continued until 11:29 am. Court resumed early, at 1:30 pm, for the Stogrin matter until 3:44 pm. The reality is that on that day, the Stogrin trial occupied nearly a full day. If Cst. Vose had testified, the continuation that day would likely have required at least another two hours. [ 72 ] Ms. de Wet’s method of calculating court time “spent on Mr.

Stogrin’s trial” does not accurately reflect the additional time required for evidentiary issues, objections, cleaning of the witness stand in between witnesses, time for witnesses to be called to the stand and a myriad of other things that arise during a trial. [ 73 ] The court in Jordan recognized that one of the major problems with the Morin framework was the vast amount of time spent counting periods of time, or micro-counting, that involved counsel combing each day of the proceedings with the result that “Each day of the proceedings from charge to trial is argued about, accounted for, and explained away.” ( Jordan , at para. 37 ).

The court recognized that this is an inefficient approach. [ 74 ] To summarize, Ms. Stogrin’s trial took place on October 14, 15 and 16, 2020 and a continuation for submissions on December 21, 2020 required three hours for Crown reply and Mr. Stogrin’s rebuttal. The trial involving the evidence and submissions on the Charter issues in the voir dire required approximately three and a half days of court time. The continuation of the trial on September 9, 2021 required nearly a full day. Realistically, had Crown called the remaining police officer, the continuation would likely have required another day.

In my view, this trial required more than the scheduled three days of court time to complete. The time the trial has required to this point is close to four and a half days. If there are submissions on sentence, that will likely require another three hours, bringing the total time required for trial to at least five days. [ 75 ] It goes without saying that counsel need to consider additional time for evidentiary issues that invariably arise in any trial.

In this case, only three days were estimated for the entire trial which did not include any time for a reserved decision on the Charter issues the court was asked to decide. The court was advised by Mr. Stogrin that his submission that the “ping” of his cell phone was an unreasonable search appeared to be novel and a case of first impression. A number of Charter arguments were advanced. It was not unreasonable to expect a reserved decision.

[ 76 ] When assessing the time required for trial, it is incumbent on counsel to consider the time that may be required for judicial deliberation respecting voir dire rulings as well as the time required for a continuation date for the trial proper and submissions. I am aware that counsel will often

schedule the continuation dates in advance of a ruling so as not to incur further delay. [ 77 ] It is not requesting a standard of perfection or exactness to expect counsel to reasonably estimate the time required to conduct a trial to conclusion. This is a vital aspect of the Jordan principles and guidelines because, without accurate time estimates, trials will invariably be adjourned for continuations resulting in more delay. In this case, I have considered whether the need for the adjournment of the trial to December 21, 2020 was caused by systemic or institutional issues and conclude that it was not.

The time spent on other matters over three days was minimal – approximately one and a half hours. I reiterate, the need for the adjournment of the trial to December 21, 2020 was the unrealistic time estimate. I wish to be clear that I am not suggesting that this was deliberate on the part of counsel but simply due to an underestimation of the time required to complete the trial. [ 78 ] It can be difficult to predict exactly how a trial will unfold and for that reason, trials can take longer than counsel expected.

That an inaccurate time estimate can be characterized as an exceptional circumstance that will be deducted was confirmed again in R. v. Lai, 2021 BCCA 105 , at para. 61 , ( 2021 SCC 52 , appeal dismissed): There was no error, in my view, with respect to the attribution of that delay to those causes. Nor is there an error in the manner in which it is characterized as exceptional.

There is no doubt that when both parties and the court are mistaken with respect to how much time will be required to complete a trial, and the trial does not finish as anticipated, the resulting delay may be characterized as an exceptional circumstance. Such delay does not reflect an unwillingness to take all necessary steps to bring the case to a prompt conclusion. In Jordan , the majority noted: [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. [ 79 ] The amount of time required by defence to cross-examine Crown witnesses, the defences that will be mounted to make full answer and defence and anticipated objections to Crown evidence are all within the knowledge of the defence. Crown cannot control this nor can it reasonably remedy the resulting delays from an inadequate time estimate.

Crown in this case did all it could to minimize the delay by making itself and its witnesses available as soon as possible. This period of delay is properly characterized as a discrete, exceptional event – the failure to accurately estimate the time required to conduct the trial voir dires and the trial proper: R. v. Eheler , 2021 BCCA 216 , para.76. I would deduct the time between October 16, 2020 to December 21, 2020 – 66 days or a little over two months - as an exceptional, discrete circumstance.

December 21, 2020 to May 6, 2021 (136 days): Is Judicial Deliberation Time During a Trial Included in the Presumptive Ceiling? [ 80 ] I turn now to the issue of the judicial reserve time between December 21, 2020 and the date the decision was delivered on May 6, 2021, a period of 136 days or four and a half months. It appears that the issue of whether reserve time during a trial should be included in the Jordan ceiling has not be directly addressed previously in this province. [ 81 ] R. v. K.G.K ., 2020 SCC 7 dealt directly with judicial reserve time following the completion of the trial.

Verdict deliberation time which precedes the imposition of a sentence, is subject to s. 11(

b) scrutiny but the Jordan ceiling does not apply: K.G.K. , para. 3 . K.G.K .dealt with a nine month delay in delivering a verdict after the conclusion of the trial. Assessing whether judicial deliberation time has infringed s. 11(

b) rights involves asking “whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances.” K.G.K. , para. 54 . Although the case was considered to be of minimal or modest complexity, nine months was not considered markedly longer than it should have been. [ 82 ] The basis for the analysis in K.G.K. was informed by a number of principles and concerns that, in my view, are also germane to a determination of whether the Jordan ceiling was intended to include judicial deliberation time as it relates to reserved decisions before the trial is concluded.

First, the presumptive ceilings and guidelines that were implemented in Jordan were to address the culture of complacency and focussed almost exclusively on the systemic delay in bringing accused persons to trial. Jordan recognized that while the judiciary have an important role in “addressing the culture of complacency, there was no suggestion that judicial deliberation time was contributing to that culture”. K.G.K. , para. 40 & 41 . [ 83 ] The court recognized a number of difficulties if judicial deliberation time was included in the presumptive ceilings.

Practically, it would be difficult to predict in a particular case whether the judge will reserve their decision and, if so, how long a judge might require to deliver their decision. If reserve or deliberation time places a case above the presumptive limit, it would be inappropriate to hold Crown accountable for this time. Crown is not in any position to explain why the judge took the time that was required to reach the decision and furthermore, it would be improper for Crown to interfere or be seen to interfere with the judicial deliberation process: K.G.K . , para. 47 .

It would potentially require a judge to explain and justify the time they needed for deliberation and, significantly, “judges do not become witnesses nor do they file affidavits” – becoming a witness would compromise a judge’s ability to adjudicate the case: K.G.K. , para. 48 . [ 84 ] The amount of deliberation time available in any case “would vary greatly depending on how close to the ceiling the evidence and argument concluded.” K.G.K . , para. 49 . For example, in some cases, if the trial concluded in time well below the ceiling, a judge would have many months to render well-crafted written reasons.

Other cases that are close to the ceiling might leave the judge left with only days. In the latter situation, if the case was complex, or there was considerable evidence or submissions to consider, it would leave a judge with far less time to consider the evidence, submissions and deliver a decision: K.G.K . , para. 49 . [ 85 ] The test to be used – whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances – must be approached with an underlying appreciation and recognition of judicial integrity.

In other words, a judge benefits from the presumption that she took no longer than reasonable necessary: K.G.K . , para. 56 . Practical constraints that judges face

must also be factored into the need to balance trial timeliness and fairness and the judge is presumed to have struck that reasonable balance. [ 86 ] K.G.K . recognized that the process of deliberation includes “carefully assessing the evidence, researching points of law, and writing reasons, which “help ensure fair and accurate decision making; the task of articulating the reasons directs the judges attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law” and “this time inures to the benefit of the accused and society at large”.

K.G.K. , para 66 . [ 87 ] At paragraphs 61 and 62, the court recognized other factors that may affect deliberation time: Finally, a reasonable amount of verdict deliberation time must account for the practical constraints that trial judges face, both individually and institutionally. Reasonableness under s. 11(

b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources” Trial judges know all too well that this is a zero-sum proposition: verdict deliberation time that goes to one case cannot go to another. The appropriate division of time between cases therefore has regard to individual judges’ workloads, different approaches to reasons and reasoning, and the realities of their daily lives.

That said, trial judges can and should consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload. [cites omitted] [ 88 ] The court in K.G.K . differentiated between post-trial and the period before the end of evidence and argument, stating that the post-trial period does not involve concerns related to an accused mounting a defence, unavailability of witnesses, or lost or degraded evidence. This is the overarching concern for delay and the reason that the Jordan guidelines were put in place.

However, the court recognized that even while awaiting a verdict, an accused person remains subject to the same restrictions on liberty, stresses and the stigma of criminal charges that exist between the laying of the charges and the end of the evidence and argument at trial: K.G.K . , para. 59 . The same is also true for individuals who are mid-trial and awaiting a judicial ruling. [ 89 ] In Mr.

Stogrin’s case, the majority of the evidence had been concluded, but for (as it turned out) one additional Crown witness – the expert called to confirm that two rifles were firearms as contemplated by s. 2 of the Criminal Code . [ 90 ] In many cases, the Charter issues in the voir dire are determinative of the case. If the evidence is excluded and Crown is unable to lead evidence to prove the offences beyond a reasonable doubt, an acquittal is typically the result. In Mr.

Stogrin’s case, he was unsuccessful in his assertion that the pinging of his cell phone, which resulted in the police locating him and his truck, was unconstitutional. He was also unsuccessful in asserting that his arrest was without reasonable and probable grounds or that the search following his arrest, which resulted in a number of firearms being located, was unconstitutional. Mr. Stogrin called no evidence in the voir dire or in the trial, as is his right. [ 91 ] Mr.

Stogrin raised a number of additional issues, specifically the applicability of the PIPEDA to the search of his cell phone when the police pinged it. This also appeared to be one of the first cases in which the court was asked to rule on the pinging of a cell phone and whether it constituted an unreasonable search. Only one case on this issue was located by defence counsel and it was decided in Ontario and, additionally, it was quite different factually. [ 92 ] Numerous case authorities were provided by Mr.

Stogrin and he prepared two written outlines of his argument along with extensive oral submissions. [ 93 ] A thoughtful, reasoned analysis was required and accordingly, the decision following the completion of the voir dire was reserved. [ 94 ] The time the decision remained on reserve was completely beyond the control of the Crown. It would be inappropriate for me, or any judge for that matter, to explain why a reserved decision took the time it did.

That would require a judge to become a witness in the case and runs the risk that the judge has to recuse herself, before the trial is concluded. [ 95 ] The same considerations and concerns that are applicable to post-trial judicial deliberation, are entirely apposite to mid-trial judicial deliberation. Judges often provide rulings mid trial without much delay or without the need to reserve when it is appropriate and possible to do so. There are, however, cases that require analysis, thought and a careful review of the evidence and submissions.

Judges benefit from the presumption of integrity and must balance the need for timely completion of decisions with the other factors identified in K.G.K. : workload, other pressing decisions, illness, annual leave, etc. [ 96 ] K.G.K .is clear that the accused must establish that the post-trial judicial deliberation time is markedly longer that it reasonably should have been, in all the circumstances. It is a high bar. Jordan and Cody did not address whether their presumptive guidelines governed judicial reserve or deliberation time post or mid trial.

K.G.K. did not address mid-trial judicial deliberation. [ 97 ] If judicial deliberation time mid trial is included in the presumptive ceiling, a judge who needs to deliver a ruling relating to more complex issues, or a large number of issues, or where a case raises a novel legal issues but is a case close to the ceiling, that judge would have less time than a judge presiding over another case where the case is not approaching the ceiling and involves straightforward issues.

Like the example in K.G.K. , this would lead to an undesirable result because the judge in the former situation would have less time to consider the evidence and the law than the judge faced with a straightforward issue. [ 98 ] The concerns that Jordan and Cody addressed were not related to judicial deliberation time, but to the pervasive and systemic culture of complacency that existed elsewhere in the justice system and that was responsible for delays in bringing people to trial. [ 99 ] I have had the benefit of reviewing R. v. Lavoie, 2017 ABQB 66 . Mr.

Lavoie brought an application for a stay based on delay before the trial was concluded. The court was required to consider whether the period of time during which two decisions were reserved during the proceedings should be deducted as exceptional circumstances. One decision was reserved during the course of a preliminary inquiry for approximately three months and the second during the trial for a period of approximately four months. Belzil J., concluded

that these reserve times were properly deducted as an exceptional circumstance (para. 38): In my view, delays occasioned by judges reserving decisions are discrete events which constitute exceptional circumstances. The decision by presiding judges to reserve decisions are both unforeseen and unavoidable. [ 100 ] He further was of the view that (para 39): …. the Crown has no ability to control whether a case is adjourned and, if so, for how long.

That decision, which is a function of judicial independence, rests solely with the presiding judge. [ 101 ] Belzil J., did not have the benefit of K.G.K . which, in my view, supports his decision. I agree that a judge’s decision to adjourn a case to deliver reasons, and the time needed to do so, is a function of judicial independence. A judge is presumed to discharge his duties in accordance with his Oath of Office.

An accused’s rights are protected by the overarching principle that judicial deliberation should not take markedly longer than it reasonably should have in all the circumstances. [ 102 ] In K.G.K . , the deliberation time was nine months. In Lavoie , the deliberation time was three months and four months for a total of seven months. In the circumstances of this case, 136 days, or approximately four and a half months between December 21, 2020 and May 6, 2021 is not markedly longer than it reasonably should have been in all the circumstances.

I have concluded that mid-trial judicial reserve is not to be included in the Jordan ceiling, but is an exceptional discrete event beyond the control of the Crown, and should be deducted. [ 103 ] I wish to add a comment about paragraph 18 of Ms. de Wet’s first affidavit. There, she deposes that following the last day of the trial involving the voir dire (December 21, 2020), the matter was adjourned “over the next six months or so” while awaiting the court’s decision. The actual time was 136 days as calculated by counsel or about four and a half months.

A statement under oath that the timeframe was “over the next six months or so” is misleading and I feel compelled to emphasize that counsel must always ensure that affidavit materials filed to support their submissions are scrupulously accurate.

Conclusion: [ 104 ] I have assessed the delay as follows: Total Delay: 1344 days/ 44 months Less: Defence delay during the following periods: January 9, 2018 to February 27, 2018 15 days February 27, 2018 to April 9, 2018 28 days December 21, 2018 to January 30, 2019 40 days January 30, 2019 to March 25, 2020 420 days 503 days Less Delay due to discrete exceptional circumstances : January 9 to February 27, 2018 34 days March 25, 2020 to October 14, 2020 203 days October 16, 2020 to December 21, 2020 66 days December 21, 2020 to May 6, 2021 136 days 439 days Remaining Delay : 402 days/13.2 months [ 105 ] I have used Mr.

Stogrin’s calculation that each month has 30.4 days. The remaining delay of approximately thirteen months is below the presumptive ceiling of eighteen months. [ 106 ] Mr. Stogrin’s application for a judicial stay of proceedings on the basis of delay is dismissed. ___________________________________ The Honourable Judge B. Flewelling