R. v. Le Strat, 2023 MBPC 38

CITATION: R. v. Le Strat, 2023 MBPC 38 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) Joel Myskiw ) ) for the Crown - and – ) ) ) Jesse Le Strat ) ) Carley Mahoney for the Accused ) ) Judgment delivered: ) July 27, 2023 FREDERICKSON, P.J. INTRODUCTION [ 1 ] Jesse Le Strat is charged with sexual assault and forcible confinement. The Information against him was sworn on July 21, 2022, and his trial is set to conclude on February 23, 2024. He has filed a delay motion, arguing that his s.7 and s.11(

b) Charter rights have been violated, and seeks a stay of proceedings pursuant to s.24(1) of the Charter . [ 2 ] The Crown disputes Mr. Le Strat’s characterization of the time it is taking for his trial to conclude. They say, once defence delay is deducted, the remaining delay is below the presumptive ceiling of 18 months, and that this case is not taking markedly longer than it reasonably should have.

In the alternative, the Crown argues that there were exceptional circumstances that rebut the presumption that the delay is unreasonable. [ 3 ] The issue for me to determine is whether the delay in this case is unreasonable. BACKGROUND [ 4 ] Through written briefs and affidavit evidence, both counsel filed an extensive timeline of events, detailing how this trial came to be scheduled. The dates and actions of the parties are not in dispute. For the purposes of my decision, I will only briefly summarize the background for context. [ 5 ] The RCMP began investigating the sexual assault allegations against Mr.

Le Strat in November 2, 2020. Their first contact with him, through his parents, was on March 17, 2022. Arrangements were made for Mr. Le Strat to turn himself in on March 23, 2022, which he did. He was placed under charge and caution, and released on an Undertaking to appear in court in Selkirk, Manitoba on July 22, 2022. [ 6 ] Counsel for Mr. Le Strat contacted the Crown’s office several times between April 4 and July 20, 2022. No disclosure was available, nor was Mr. Le Strat appearing on the Selkirk docket.

The reason for this is now evident, as the Information was not sworn until July 21, 2022. [ 7 ] Following the first court appearance on July 22, 2022, Ms Mahoney continued to contact the Crown’s office, continuing to request disclosure. She asked for a Case Management Conference (CMC) in order to set trial dates. She indicated early on and throughout that she saw delay as an issue, including the pre-charge delay. [ 8 ] She dealt with several different Crown Attorneys.

Based on the email correspondence filed as an exhibit to Ms Gordon’s affidavit, it appears that responsibility for this matter has been transferred between different Crowns. Neither Mr. Roziere, who appeared at the CMC, nor Mr. Myskiw, who appeared for the delay motion, is the Crown Attorney responsible for conducting the trial. [ 9 ] I heard oral arguments on the delay motion in court on July 10, 2023. Following the arguments, I required further clarification regarding the setting of dates and wrote to counsel requesting this information.

They both responded by way of email correspondence on July 12 and 13, 2023. These responses have been taken into account in coming to my decision. THE LAW

[ 10 ] For the purposes of my decision, I am only dealing with Mr. Le Strat’s s.11(

b) Charter argument, as that is determinative of the issue. [ 11 ] The applicable law is clear and not in dispute. Paragraphs 47 and 48 of the Supreme Court of Canada’s decision in R v. Jordan , 2016 SCC 27 , set out the framework: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then then onus is on defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases. [ 12 ] The Ontario Court of Appeal, in R v.

Coulter , 2016 ONCA 704 , set out a

summary of the process to be followed:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para 47 ).

(2) Subtract defence delay from the total delay, which results in the “Net Delay” ( Jordan , at para 66 ).

(3) Compare the Net Delay to the presumptive ceiling ( Jordan , at para 66 ).

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , at para 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , at para 47 ). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , at para 71 ).

(5) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , at para 75 ).

(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para 80 ).

(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , at para 48 ). [ 13 ] Cases tried in Provincial Court are subject to a presumptive ceiling of 18 months ( Jordan , at para 49 ). ANALYSIS Total Delay [ 14 ] The law is clear that the delay calculation starts from the date the Information was sworn (see R v. Kalanj, [1989] SCR 1594 at para 16). Although Ms Mahoney raises the issue of pre-charge delay, it is in a different context.

She was not advocating a different start date for the purposes of calculating delay, but rather urged me – if I found this to be a close case – to consider the period of pre-charge delay as part of my assessment. This was the approach taken in several of the cases filed in support of this position (see for example R v. M.S., 2017 MBQB 12 ). [ 15 ] I find that the calculation of total delay in this case is from July 21, 2022 (the date the Information was sworn) to February 23, 2024 (the anticipated end of Mr. Le Strat’s trial). This equates to a total delay of 19 months and 3 days.

Defence Delay [ 16 ] The next step is to subtract any defence delay from the total delay, to arrive at the net delay. [ 17 ] Defence delay is described in Jordan as delays waived by defence, and delays caused solely or directly by the defence’s conduct (see para 66). [ 18 ] There was no waiver of delay. The sole issue is whether the delay caused by Ms Mahoney not being available for the trial dates of January 10 and 11, 2024, should result in 41 days being subtracted from the total delay. [ 19 ] The Crown argues that it was available to proceed to trial on January 10 and 11, 2024. Ms Mahoney was not.

If the time from January 11 through to February 23, 2024, is attributed to defence delay, this will bring the net delay below the presumptive ceiling. [ 20 ] Context is important. [ 21 ] As is the practice in Winnipeg, including circuit court locations such as Selkirk, Manitoba, trials involving multiple days and

special sitting days require judicial authorization prior to being scheduled. This is achieved through a CMC. Once the CMC Judge authorizes dates, the Crown’s office - on behalf of the parties - will then contact the trial co-ordinator’s office (TCO) to request available dates. TCO emails dates to the Crown and counsel. Once the parties have agreed to dates, TCO enters these dates into the court calendar. [ 22 ] A first CMC was scheduled on November 10, 2022. It was adjourned. Significant disclosure was outstanding. A second CMC was held on January 18, 2023.

Some disclosure remained outstanding, however the parties were able to identify the time required for trial, including s.276 and s.278 applications. Ms Mahoney advised the CMC Judge that a delay motion may be filed on behalf of Mr. Le Strat. [ 23 ] The CMC Judge authorized two dates for the anticipated pretrial motions, each of which require two-stage hearings. It was agreed that the motions would be heard together. In addition, two consecutive days for trial were authorized.

The CMC Judge specified that the motion dates were to be set approximately eight weeks apart, and the trial dates approximately eight weeks from the second (stage two) motion date. [ 24 ] Setting the dates in this manner would allow the trial judge time to decide each stage of the motions and to provide reasons, as is required pursuant to the procedures set out in the Criminal Code . [ 25 ] On January 20, 2023, Ms Mahoney asked the Crown to send her all available trial dates in accordance with the CMC Judge’s direction. By email on February 9, 2023, she repeated her request for trial dates.

Again, on February 16, 2023, she asked for dates, indicating that the matter was appearing in court the next day to set dates. [ 26 ] Following this third email request, the Crown Attorney who attended the CMC but who does not have conduct of the trial, requested that a Crown file manager contact TCO for dates.

She emailed TCO the morning of February 17, 2023, and dates were provided, starting in June 2023 through to March 2024: 2023 Dates: June 12, 16; July 31; August 29, 30, 31; September 1; October 6; December 1, 11, 15, 22 2024 Dates: January 3, 5, 10, 11, 19, 26, 29, 30, 31; February 2, 7, 9, 12, 14, 16, 22, 23, 27, 28, 29; March 1, 6, 7, 8, 11, 14, 15, 22 [ 27 ] Ms Mahoney responded with her availability a little more than an hour after receiving the dates from TCO. She also indicated that she had “much earlier” availability than the dates offered.

She reminded the Crown that she intended to file a delay motion. [ 28 ] The Crown’s office advised that it could accommodate all dates offered, and asked Ms Mahoney which she would like confirmed. There was no offer to ask TCO if any earlier dates were available. [ 29 ] In response, Ms Mahoney indicated “the first ones [dates] that comply with the judges (sic) parameters.” She also indicated that she was ill and at home, and asked the Crown’s office to figure out which dates these would be. [ 30 ] The Crown’s office requested June 16, 2023, October 6, 2023 and February 22 and 23, 2024.

Shortly thereafter, the Crown’s office asked for the October 6, 2023 date to be changed to December 15, 2023, with the other dates remaining the same. [ 31 ] The Crown advised that the reason for changing the date from October 6, 2023, to December 15, 2023, was to accommodate the

schedule of the Crown Attorney assigned to this trial. He has a month-long trial that is scheduled to end on October 6, 2023. [ 32 ] The Crown asserts that they were available to proceed on January 10 and 11, 2024, for trial.

As set out in the Crown’s Motion Brief, these dates appear to be the earliest possible two consecutive dates offered by TCO. (Parenthetically I note that there were consecutive dates offered at the end of August, 2023, but neither counsel argued that these dates could be used for trial.) [ 33 ] The Crown further argues that, had Ms Mahoney been available for the January trial dates then the parties could have gone back to the CMC Judge to “insist on a more flexible approach to motion date setting” given that the eight week parameter between the December 15, 2023, motion date and the January 2024 dates would not be met. [ 34 ] Given the context, I disagree that the time from January 11 to February 23, 2024, should be counted as defence delay. [ 35 ] First, despite stating that they could accommodate all dates offered, this was obviously not the case, as the Crown responsible for the trial was not available on October 6, 2023.

The unavailability of the Crown on October 6, 2023, and the subsequent choice of dates by the Crown’s office precluded January 10 and 11, 2024, from meeting the scheduling parameters set out by the CMC Judge. [ 36 ] Second, the argument that they could have gone back and asked for more flexibility in scheduling rings hollow. The dates were set in February 2023. In April, Ms Mahoney asked for a third CMC, to express concerns related to delay. The CMC Judge directed counsel to appear before me as the trial judge, and this hearing was held on May 29, 2023.

Dates were discussed, including making use of June 16, 2023, for a contested s.715.1 application that only recently came to light. I authorized dates in Winnipeg, including the delay motion and a new date for the first stage s.276/278 motions. I indicated that I could give my decision on the first stage motions sooner than the December date. I was not asked if earlier trial dates could be found, or accommodated in Winnipeg. [ 37 ] Third, Ms Mahoney indicated that she had earlier dates available than those offered by TCO.

The Crown’s office did not follow up with her or with TCO to see if earlier dates could be accommodated. When dates were set in February, the Crown was well aware that Ms Mahoney was anticipating bringing a delay motion. [ 38 ] Fourth, it took almost four weeks and three emails from Ms Mahoney before the Crown contacted TCO to request dates once they were authorized by the CMC Judge. [ 39 ] The Court in Jordan stated as an example that the defence will have directly caused the delay if the Court and Crown are ready to proceed but the defence is not.

However, periods of time during which the Court and Crown are unavailable will not constitute

defence delay, even if defence counsel is also unavailable (see para 64). [ 40 ] I am not satisfied that the Crown could proceed on January 10 and 11, 2024. Based on the trial Crown’s unavailability on October 6, 2023, and the choice of December 15, 2023, for the second motion date, the earliest trial dates in accordance with the CMC Judge’s parameters are February 22 and 23, 2024 – the dates currently set for trial. [ 41 ] The Crown dragged its feet in contacting TCO to set this matter down for trial, only doing so after several prompts from Ms Mahoney.

It did not take steps to see if earlier dates were available. It did not contact the CMC Judge to see if the scheduling parameters could be modified, to take into account the dates offered by TCO. [ 42 ] The Crown failed to take steps despite knowing that delay was an issue. This is not a case where counsel was colloquially “waiting in the weeds” for the trial date to approach before springing the issue of delay. Delay was raised by Ms Mahoney almost from the beginning. It was acknowledged in the CMC memo that she anticipated filing a delay motion.

And yet, there is no evidence of a sense of urgency on behalf of the Crown’s office. [ 43 ] There is no defence delay to be deducted. [ 44 ] Accordingly, the net delay exceeds the 18 month ceiling and is presumptively unreasonable. Exceptional Circumstances [ 45 ] Having found that the delay is presumptively unreasonable, the burden shifts to the Crown to establish the presence of exceptional circumstances. The Court in Jordan identified two categories of exceptional circumstances, both of which the Crown argues are present in this case.

Discrete Event – COVID-19 Pandemic [ 46 ] There is no question that the COVID-19 pandemic was a discrete event. It affected almost all facets of our daily lives, including court operations. The issue here is whether it affected the scheduling of Mr. Le Strat’s trial. [ 47 ] When Mr. Le Strat was charged, court operations were almost back to normal. Although some restrictions remained in terms of the number of people permitted to be physically present in a courtroom at any one time, all matters – both in and out of custody – were proceeding. [ 48 ] This is not to say that there were no lingering impacts.

As set out in Ms Basarab’s affidavit, many trials in Selkirk had to be rescheduled because of the pandemic. Her affidavit detailed the efforts made by the Crown’s office to triage and prioritize cases during the pandemic. Some cases were stayed or resolved, rather than proceed to trial. [ 49 ] By the end of the various court closure periods due to the pandemic (from March 2020 – February 2022), 34 of 60 trials in Selkirk were rescheduled. No evidence was available as to whether all 34 ultimately proceeded to trial. No evidence was available as to when the rescheduled dates were.

Rather, the Court was asked to “infer” that the pandemic negatively affected the scheduling of Mr. Le Strat’s trial. [ 50 ] In support of this approach, the Crown relies on the Ontario Court of Appeal case of R v. Agpoon , 2023 ONCA 449 and the Manitoba Court of Queens Bench case of R v.

Pierpoint , 2022 MBQB 117 . [ 51 ] In Agpoon , the Court said that court closures due to the COVID-19 pandemic need to be taken into account and treated by the reviewing court as a “discrete exceptional circumstance” in assessing delay. [ 52 ] In Pierpoint , Justice Toews agreed with the Crown’s approach and deducted periods of court closures in assessing delay.

In taking this approach, he specifically declined to follow cases that required a causal link be established as to how the pandemic affected the scheduling of a particular case. [ 53 ] Both Agpoon and Pierpoint involve trials that were proceeding through the criminal justice system while court closures were implemented due to the pandemic. In both cases, the Court attributed a period or periods of time resulting from court closures as an exceptional circumstance, and deducted this time from the presumptive ceiling. [ 54 ] These cases are distinguishable from Mr. Le Stat’s case. [ 55 ] As has been noted, Mr.

Le Strat’s case did not enter the court system until several months after the pandemic-related court closures had ended. None of Mr. Le Strat’s routine court appearances were affected. There were no administrative adjournments. None of his court dates were cancelled or rescheduled. [ 56 ] Trial dates were not requested until February 17, 2023, almost exactly one year to the day after the Provincial Court Notice of February 18, 2022, announcing the resumption of regularly scheduled court sittings and special sittings throughout Provincial Courts in Manitoba.

This resumption of regularly scheduled court sittings was effective February 28, 2022. There have been no pandemic-related court closures or restrictions since. [ 57 ] The multitude of dates offered by TCO over a nine-month period do not suggest lingering problems with court availability attributable to the pandemic. The dates may not have been conducive to the parameters set by the CMC Judge, but that is a logistics issue, one that was not proactively addresses by counsel. [ 58 ] Further, Mr. Le Strat’s trial involves allegations of sexual assault of a complainant under the age of 18. This is a type of

proceeding that Ms Basarab says in her affidavit the Crown’s office was giving priority to during the pandemic. Once Mr. Le Strat’s matter entered the system, there is no evidence that his charges were flagged to give them this priority. The file went through the hands of several Crown Attorneys. Ms Mahoney frequently expressed concerns with disclosure and delay, but the Crowns’ responses do not suggest a reciprocal urgency or sense of priority. [ 59 ] The evidence does not support the inference that the Crown asks me to make. I am unable to find, specific to Mr.

Le Strat’s case, that the pandemic was a discrete event that established the presence of exceptional circumstances. Thus, the remaining delay still exceeds the presumptive ceiling. Particularly Complex Cases [ 60 ] The Crown argues that Mr. Le Strat’s case is “moderately” complex, such that the time taken in the case is justified, and the delay is reasonable. With respect, I cannot agree. [ 61 ] The Court in Jordan spoke of particularly complex cases, noting that even a typical murder case would not be considered particularly complex.

A case of moderate complexity falls short of a particularly complex standard. [ 62 ] Although the Crown Attorney responsible for this trial changed more than once, they were dealing with the same defence counsel throughout. There is only one complainant, and one accused. [ 63 ] The complainant now lives out of province, which the Crown says made meeting with her more challenging.

Given the use of and familiarity with video conferencing as a result of the pandemic, it is difficult to see how the complainant’s out of province residence made this any more challenging than setting up a meeting with a local complainant. [ 64 ] This is, by all accounts, a relatively straight-forward sexual assault case. As I understand it, there will be up to three Crown witnesses (the complainant, her father and an investigating officer), and if defence evidence is led, it will consist of two witnesses.

Ms Mahoney is proceeding with a s.276 application (prior sexual conduct) and s.278 application (third party records). She alerted the Crown and the CMC Judge to these applications well in advance, and these pretrial motions were taken into account in scheduling and setting dates. [ 65 ] In the result, the net delay remains above the presumptive ceiling of 18 months. Because of this, Mr. Le Strat’s s.11(

b) Charter rights were breached. Accordingly, the remedy is a stay of proceedings, which is granted. “Original signed by” Frederickson, P.J.