R v. D.C.R. Date:, 2017 BCPC 326

Citation: R v. D.C.R. Date: 20171030 2017 BCPC 326 File No: 44260-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.C.R. RULING ON APPLICATION OF THE HONOURABLE JUDGE J. T. DOULIS PUBLICATION BAN (pursuant to s. 486.4(2) - Complainant or Witness for listed sexual offences and 486.4(3) - Complainant or witness under 18 Counsel for the Crown: R. Smith

Counsel for the Defendant: J. Pakenham Place of Hearing: Prince George, B.C. Date of Hearing: September 27, 2017 Date of Judgment: October 30, 2017 Introduction [1] On September 27, 2017, D.C.R. applied for a stay of proceedings pursuant to ss. 11(

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

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

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Issues: [2] The salient issues before this court are as follows: a. Does the 18 month presumptive ceiling for proceedings in the Provincial Court established in R v. Jordan, 2016 SCC 27 apply to the sentencing phase? b. If the 18 month presumptive ceiling does not apply between the conviction and sentencing, then how is delay in that period tobe assessed? c. Have D.C.R.’s s. 11(

b) Charter rights been infringed? Evidence and Submissions [3] At the hearing of D.C.R.’s s. 11(

b) Charter application, I heard submissions of counsel and received the followingdocumentation: a. The Defence’s Notice of Application and Constitutional Question filed August 1, 2017; b.

The Affidavit of Daniela Benito, sworn September 6, 2017, attaching as exhibits: Exhibit “A”: Information 44260 sworn February 3, 2016; Exhibit “B”: Transcript of the February 17, 2016 court proceedings (adjournment of defence’s application to vary a recognizance ofbail); Exhibit “C”: Transcript of the February 29, 2016 court proceedings (Defence’s application to vary his recognizance of bail); Exhibit “D”: Transcript of the April 25, 2016 court proceedings (Defence’s application to vary his bail condition); Exhibit “E”: Transcript of June 6, 2016 court proceedings (Crown adjournment of the defence’s application to vary his bail conditions); Exhibit “F”: Transcript of the June 7, 2016 court proceedings (Defence’s application to vary his bail conditions); Exhibit “G”:Transcript of the September 22, 2016 court proceedings (Crown’s application to adjournment of trial); Exhibit “H”: An email from Lindsay McGuire of J.

C. Word Assist setting out 13 court appearances with respect to this matter betweenMarch 9, 2016 to and including June 13, 2017, which took place before the Judicial Case Manager or before a Judicial Justice inCourtroom 103 and were not recorded.

Accordingly those court proceedings were not able to be transcribed; Exhibit “I”: A scheduling notice dated June 20, 2017, indicating a 2.5 hour sentencing hearing was scheduled on June 6, 2017, inCourtroom 102; and Exhibit “J”: An email thread between the JCM and the Crown and Defence Counsel with respect to rescheduling the sentencing hearingbecause Judge Doulis was not available.

c. Crown Book of Documents containing 98 documents, all but four of which are emails among the Crown, Defence Counsel andthe Judicial Case Managers. The four exceptions consist of: (

i) the Record of Proceedings; (ii) the Crown’s Application to Adjourn thefirst trial date; and (iii) two Scheduling Notices. The Crown’s Book of Documents was marked Exhibit 1; and d. The Crown’s Time Line for the s. 11(

b) application. [4] The parties provided the Court with the following authorities: a. Crown Authorities: R. v. Akuma, 2017 BCSC 896 R. v. Baldini, 2012 BCCA 206 R. v. Cody, 2017 SCC 31 R. v. Dadmand, 2017 BCSC 1644 R. v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631 R. v. Kalanj, (SCC), [1989] 1 SCR 1594 R. v. Kutynec, (ON CA) R. v. Pelletier, 2016 BCSC 2496 R. v. Sanghera, 2014 BCCA 249 R. v. Sanghera, [2015] SCR 691 b. Defence Authorities R. v. Jordan, 2016 SCC 27 , [2016] 1 SCR 631 R. v. Williamson, 2016 SCC 28 R. v.

Cody, 2017 SCC 31 Chronology of Proceedings [5] I have set out the chronology of proceedings in the table below. Date Event Days26 Jan 2016 D.C.R. is alleged to have committed the s. 271 CC offence ofsexual assaulting K.l.G., in Prince George, B.C. on January 26,2016. Pre-Charge 02 Feb 2016 D.C.R. is alleged to have committed the s. 129(

a) CC offence ofwilfully resisting or obstructing a peace officer in the execution ofhis duties on February 2, 2016. Pre-Charge 02 Feb 2016 D.C.R. is arrested and released on an Undertaking to a PeaceOfficer on February 2, 2016. Pre-Charge 03 Feb 2016 Information 44260-1 is sworn on February 3, 2016, chargingD.C.R. with one count of sexual assault contrary to s. 271 of theCriminal Code and one count of wilfully resisting or obstructing apeace officer, Constable Baird, in the execution of his dutiescontrary to s. 129(

a) of the Criminal Code: Exhibit “A”” to theaffidavit of Daniela Benito. Day 1

03 Feb 2016 On February 3, 2016, D.C.R. was released on a Recognizance to a Judge without deposit or surety before Judge Keyes with consent of the Crown. The Recognizance contained a number of conditions including: Condition 6: You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be of the age of 16 years or less, except as follows: (

a) with the advance written consent of the Bail Supervisor; and (

b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor. Condition 7 You shall not attend at any public park, school ground, daycare centre, public swimming pool, playground, skating rink, or community centre or recreational centre where persons of the age of 16 years or less are present or can reasonably be expected to be present, except in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the Bail Supervisor.

See: Exhibit 1, Document 95 Day 1 17 Feb 2016 D.C.R. filed an application to vary the recognizance of bail imposed by Judge Keyes. The matter came before Judge Weatherly for hearing on February 17, 2016. The Crown opposed the application and the matter was adjourned: Exhibit “B” to the affidavit of Daniela Benito. 29 Feb 2016 D.C.R.’s application to vary his bail came before Judge Gray on February 29, 2016.

D.C.R. sought to vary Condition 6 to permit him supervised access to his own children: Exhibit “C” to the affidavit of Daniela Benito. 23 Mar 2016 D.C.R. was arraigned in Prince George Provincial Court on March 23, 2016. He entered pleas of not guilty to both counts on Information 44260-1. 48 days 1 Apr 2016 The first trial date is fixed before the Judicial Case Manager (“JCM”) on April 1, 2016.

At that time a one day trial was scheduled to proceed on October 3, 2016: Exhibit 1, Document 97. 57 days 25 Apr 2016 On April 25, 2016 D.C.R.’s application to vary the name on the recognizance of bail came on for hearing. D.C.R. sought to correct his son’s name as it appeared on the recognizance from N.H. to N.R.: Exhibit “D” to the affidavit of Daniela Benito.

Condition 6 of the Recognizance was amended to read: You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be of the age of 16 years or less, except as follows: (

a) with the advance written consent of the bail supervisor; (

b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor or; (

c) you may have contact or communication directly or indirectly with your children A.F. and N.H. [sic] in the presence of J.H., D.M. or N.R. with knowledge of this condition, provided Doreen Hardy or delegate social worker from the Ministry of Child and Families is given prior written notice. See: Exhibit 1, Document 95 06 Jun 2016 On June 6, 2016, D.C.R. brought an application to vary the conditions of his recognizance of bail to permit him to have contact with his children. The matter came on for hearing before Judge Gray and was adjourned to June 7, 2016: Exhibit “E” to the affidavit of Daniela Benito. Date Event Days

07 Jun 2016 D.C.R.’s application to vary his recognizance of bail came on forhearing before Regional Administrative Judge Brecknell on June 7,2016. RAJ Brecknell amended Condition 6 to allow D.C.R. tohave contact or communication with his own children: Exhibit “F”to the affidavit of Danielo Benito. Condition 6 of the Recognizance was amended to read: You shall have no contact or communication directly or indirectlywith, nor be alone in the presence of, any person you know to be orwho reasonably appears to be of the age of 16 years or less, exceptas follows: (

a) with the advance written consent of the bail supervisor; (

b) in the presence of an adult third party, with knowledge of thiscondition approved in writing in advance by the bail supervisor or; (

c) you may have contact or communication directly or indirectlywith your children A.F. and N.R. All other provisions remained the same. See: Exhibit 1, Document 95 08 Jul 2016 On July 8, 2016, the Supreme Court of Canada released itsdecisions in the companion cases of R. v. Jordan, 2016 SCC 27and R. v. Williamson, 2016 SCC 28 . 15 Sep 2016 On September 15, 2016, the Crown filed its application to adjournthe October 3, 2016 trial date on the basis: 1. The complainant had relocated and had not been served withnotice of the trial date; 2.

The Crown had not yet interviewed the complainant as to herneed for testimonial accommodation; 3. Crown counsel was overbooked for the trial date and thecourtroom had another trial set to run, as well as a disposition; 4. The accused was out of custody; 5. October 3, 2016, was the first trial date for the offence; and 6. The adjournment would be a Crown delay. Exhibit 1, Document 96. 22 Sep 2016 On September 2016, Judge Gray heard the Crown’s application toadjourn the October 3, 2016 trial date. The Crown argued it couldnot locate the Complainant, who was a key Crown witness.

TheDefence opposed the Crown’s adjournment application. At thehearing, the Crown conceded that any delay arising from theadjournment would rest with the Crown. The Court granted theCrown adjournment application: Exhibit “G” to the affidavit ofDanielo Benito. 231 days 26 Sep 2016 On September 26, 2016, counsel fixed the second trial date forDecember 23, 2016 only: Exhibit 1, Document 98. 235 days 03 Oct 2016 The original trial date, October 3, 2016, was adjourned onSeptember 22, 2016 to December 23, 2016. 242 days 22 Dec 2016 at 10:13 p.m.

Defence Counsel emailed the Crown on the evening of December22, 2016, asking for disclosure of officer’s warrant to arrest D.C.R.in his dwelling house: Exhibit 1, Document 7. 23 Dec 2016 at 7:32 a.m. In the morning of December 23, 2016, the Crown Counsel advisedDefence Counsel there was no warrant for the officer to arrestD.C.R. in his dwelling house. Exhibit 1, Document 8. 23 Dec 2016 The trial commenced before Judge Doulis in Prince GeorgeProvincial Court on December 23, 2016.

The Crown completedthe Complainant’s evidence and Constable Baird’s evidence-in-chief. 323 days 23 Dec 2016 On December 23, 2016, the first day of trial, D.C.R. filed anapplication for a judicial stay of proceedings pursuant to ss. 7, 8, 9and 24(1) of the Charter. Date Event Days

23 Dec 2016 At the end of the first day of trial, the matter was adjourned to theJCM on December 28, 2016, to fix a one day continuation of thetrial: Exhibit 1, Documents 9 & 10. 28 Dec 2016 On December 28, 2016, Defence counsel advised the Crown andJCM that he believed it appropriate to fix two further days of trial:Exhibit 1, Document 11. 28 Dec 2016 On December 28, 2016, the JCM offered January 27, 2017, to theCrown and the Defence as the first available date for acontinuation: Exhibit 1, Document 13. 28 Dec 2016 On December 28, 2016, the Crown and Defence asked the JCM toschedule a pre-trial conference to clarify the nature of and timerequired for the Defence’s Charter application: Exhibit 1,Documents 12, 16 - 22. 30 Dec 2016 On December 30, 2016, the JCM scheduled a pre-trial conferenceon January 6, 2017, and the continuation of the trial on January 27,2017: Exhibit 1, Documents 22-29. 04 Jan 2017 On January 4, 2017, the Defence Counsel inquired with CrownCounsel whether there was additional disclosure from its policewitness because of the discrepancy between what the officer saidat trial and what was disclosed in the Report to Crown and theofficer’s notes: Exhibit 1, Document 30. 04 Jan 2017 On January 4, 2017, Crown Counsel advised Defence Counsel theCrown had no documentation other than that indicated in itsMemorandum of Disclosure: Exhibit 1, Document 31. 06 Jan 2017 On January 6, 2017, counsel appeared before Judge Doulis for apretrial conference.

At that time, the Court directed the partiesschedule a further day of trial in addition to the January 27, 2017date already scheduled: Exhibit 1, Document 32-33. 06 Jan 2017 On January 6, 2017, the JCM scheduled a second trial continuationdate for February 2, 2017: Exhibit 1, Documents 34 to 36. 27Jan 2017 The second day of trial commenced on January 27, 2017, at whichtime the Crown and Defence completed their respective cases. 358 days 02 Feb 2016 On February 2, 2017, the third day of trial continued with counselmaking submissions on both the merits of the case and theDefence’s Charter application. 364 days 03 Mar 2017 The fourth and final day of trial continued on March 3, 2017, withJudge Doulis’ decision and reasons for judgment: R v.

D.C.R.,2017 BCPC 80 . On this date the Court: a. convicted D.C.R. of sexual assault (s. 271 CC); b. acquitted D.C.R. of obstruction (s. 129(

a) CC); c. upheld D.C.R.’s s. 7, 8 and 9 Charter application with respectto the s. 129(

a) CC; and d. refused D.C.R.’s application for a judicial stay of the s. 271 CCoffence as a result of the police breach of D.C.R.’s s. 7, 8 and 9Charter rights. 393 days 03 Mar 2017 On March 3, 2017, Judge Doulis ordered a presentence report fromB.C. Community Corrections. 393 days 03 Mar 2017 On March 3, 2017, Judge Doulis adjourned the matter to the officeof the JCM on April 2, 2017, to fix a date for sentencing. 07 Apr 2017 On April 7, 2017, Probation Officer Ross filed her April 4, 2017presentence report with the Court.

In her report, PO Rossrecommends the Forensic Psychiatric Services provide apsychological or psychiatric assessment for D.C.R.’s risk of sexualreoffending: Exhibit 1, Document 82. 10 Apr 2017 On April 10, 2017, Crown Counsel asked the JCM to

schedule anappearance before Judge Doulis to discuss whether the Courtwished to order a psychological or psychiatric assessment as PORoss suggested: Exhibit 1, Document 40. 11 Apr 2017 On April 11, 2017, the JCM scheduled an appearance before JudgeDoulis by video at 1:45 on April 13, 2017, to discuss PO Ross’recommendation the Forensic Psychiatric Services provide apsychological or psychiatric assessment report: Exhibit 1,Documents 41 to 50. 11 April 2017 On April 11, 2017, the JCM cancelled the April 12, 2017 fix datewith consent of the Crown and Defence Counsel: Exhibit 1,Documents 51- 53. Date Event Days

13 Apr 2017 On April 13, 2017, counsel appeared before Judge Doulis todiscuss PO Ross’ request for a report from Forensic PsychiatricServices. Crown Counsel indicated he did not require a report forthe purposes of determining the Crown’s position on sentencing. As the defence was seeking a conditional sentence, Judge Doulisordered the Forensic Psychiatric Services Commission provide apsychiatric assessment and risk assessment report: Exhibit 1,Document 95. 18 April 2017 On April 18, 2017, D.C.R.’s sentencing hearing was adjourned toJune 7, 2017: Exhibit 1, Documents 54 - 57. 02 Jun 2017 On June 2, 2017, Dr.

David Wiebe filed with the court his May 31,2017 psychological report and risk assessment: Exhibit 1,Document 82. 05 Jun 2017 10:40 a.m. On June 5, 2017, Defence Counsel notified the Crown he objectedto the presentence reports because they contained impermissiblematerial. Defence counsel stated: “In my view, new reports willhave to be commissioned.” Exhibit 1, Document 58. 05 Jun 2017 1:52 p.m.

On June 5, 2017, Crown Counsel asked Defence Counsel toprovide particulars of his objection to the presentence reports andany authorities upon which he intended to rely: Exhibit 1,Document 59. 07 Jun 2017 The sentencing hearing scheduled for June 7, 2017, did notproceed. Instead, the Defence argued its application to strike thepresentence and psychiatric assessment reports on the basis of theirimpugned content. The Defence asked the Court to order newreports. The Crown opposed the Defence’s application on thebasis the impugned content could be redacted from the reports.

The entire time set aside for the sentencing hearing was used toargue the Defence’s application to commission new presentencereports. Judge Doulis reserved her decision. 489 days 08 Jun 2017 On June 8, 2017, the Crown asked the JCM to

schedule JudgeDoulis’ decision on the Defence’s June 7, 2017 application on June12, 2017. Defence Counsel indicated his availability on that day:Exhibit 1, Documents 60 - 61. 09 Jun 2017 Judge Doulis’ decision on the Defence’s June 7, 2017 applicationwas initially scheduled for 2:00 p.m. on June 13, 2017, thensubsequently rescheduled by the Court for June 16, 2017: Exhibit1, Documents 63 - 71. 13 Jun 2017 On June 13, 2017, the JCM scheduled Judge Doulis’ decision onthe Defence’s June 7, 2017 application for June 16, 2017, at 1:30p.m.: Exhibit 1, Document 71.

Judge Doulis was to appearremotely by video from Smithers Provincial Court. 16 Jun 2017 Judge Doulis delivers her decision in R. v. D.C.R., 2017 BCPC 202 on June 16, 2017. The Court dismissed the Defence’sapplication to strike and reorder the preparation of new presentenceand psychiatric assessment reports.

Instead, Judge Doulis orderedthe existing reports be redacted to excise the offending material. 16 Jun 2017 On June 16, 2017, Judge Doulis adjourned the matter to the officeof the JCM on June 19, 2017, to fix a date for a half day sentencinghearing. 20 Jun 2017 On June 20, 2017, the JCM scheduled a 2.5 hour sentencinghearing on July 6, 2017. Judge Doulis was to appear at thesentencing hearing remotely by video: Exhibit “I” to DanieloBenito’s affidavit; Exhibit 1, Documents 72 - 81. 29 Jun 2017 9:09 a.m.

On June 29, 2017, Defence Counsel forwarded to the Crown hisredacted presentence and psychological assessment reports: Exhibit1, Document 82. 05 Jul 2017 On July 5, 2017, the Crown Counsel advised the Defence Counselhe agreed with the proposed redactions of the presentence and thepsychological assessment reports: Exhibit 1, Document 83. 06 Jul 2017 The sentencing hearing was scheduled for a half day on July 6,2017, with Judge Doulis appearing remotely by video fromHazelton Provincial Court.

Judge Doulis cancelled the sentencinghearing due to lack of court time in Hazelton: Exhibit “J” toDanielo Benito’s affidavit. 518 days 06 Jul 2017 On July 6, 2017, Judge Doulis ordered the matter adjourned to theoffice of the JCM on July 21, 2017, to fix a new sentencing date:Exhibit 1, Document 87-88. Date Event Days

06 Jul 2017 On July 6, 2017, Crown Counsel indicated to the JCM he was notavailable to attend a sentencing hearing from July 24 to andincluding September 8, 2017; Exhibit 1, Document 89 & 90. 10 Jul 2017 On July 10, 2017, the JCM rescheduled the sentencing hearing forSeptember 27, 2017, at 9:30 a.m., with Judge Doulis appearingremotely by video from Burns Lake Provincial Court: Exhibit 1,Documents 89 to 94. 01 Aug 2017 On August 1, 2017, the Defence Counsel filed and served D.C.R.’sNotice of Application and Constitutional Question pursuant to s.8(2)(

b) of the Constitutional Questions Act seeking a judicial stayof proceedings in respect of all charges in this matter on thegrounds his right to be tried within a reasonable time as protectedby s. 11(

b) of the Charter had been infringed: Exhibit 1, Document94. 27 Sep 2017 The sentencing hearing came before Judge Doulis on September27, 2017. The sentencing did not proceed. Instead counsel arguedthe Defence’s application for a judicial stay of proceedings under s.11(

b) and 24(1) of the Charter. Judge Doulis reserved her decision. 27 Sep 2017 On September 27, 2017, Judge Doulis referred the matter to theoffice of the JCM to

schedule a date for her decision on theDefence’s 11(

b) Charter application followed by a half-daysentencing hearing, should it be necessary. 601 days 30 Oct 2017 Judge Doulis’ decision on the Defence’s s. 11(

b) CharterApplication is scheduled for October 30, 2017. 634 days Date Event Days The Legal Framework The Jordan Analysis [6] On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, establishing a new analyticalframework for determining whether an accused s. 11(

b) Charter rights have been violated. Jordan’s companion case, R. v. Williamson,2016 SCC 28 , was released the same day. [7] Jordan sets the temporal ceilings for the prosecution of criminal cases in Canada. The presumptive ceiling for cases tried inSupreme Court is 30 months; the presumptive ceiling for cases tried in Provincial Court is 18 months. If the total time from the chargedate to the actual or anticipated end of the trial (minus defence delay) exceeds the ceiling, the delay is presumptively unreasonable:Jordan, para. 56. [8] The Jordan roadmap engages a seven step process which I have set out below.

Step One: calculate elapsed time [9] Firstly, the Court must calculate the total elapsed time from the charge date that is the date when Information was sworn, to theactual anticipated end of the trial: Jordan, para. 60, Williamson, at para. 19; Cody, para. 21.

Step Two: calculate and deduct defence delay [10] The Court must deduct from the total delay any delay attributable to the defence by waiver or defence delay-causing conduct:Jordan, para. 60; Cody, para. 22. [11] Defence delay is twofold: delay that is expressly waived by the defence and delay that is “solely or directly” caused by theactions or inaction of the defence: Jordan, at paras. 1, 66 and 113; Williamson, at para. 20; Cody, at paras. 27 and 8. Delay caused by Defence Waiver [12] Moldaver J. for the majority in Jordan, explained what the Supreme Court means by waiver: [61] . . .

Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have fullknowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issueof ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusionof specific periods in the overall assessment of reasonableness” . . . [Citations omitted] Also see: Cody, para. 27; Akuma, at para. 8.

Delay caused by Defence Conduct [13] In Jordan, the Supreme Court held (at para. 113) the defence ought not benefit from its own delay causing action or inaction. Delay caused by defence conduct must be solely or directly caused by the accused and includes:

a. Delay caused by deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests: Jordan , para. 63 ; Cody , para. 30 ; b. Delays in scheduling where the defence is not ready to proceed or available, where the Crown and Court are available: Jordan , para. 64 . If either the Crown or Court is also unavailable, the delay will not be attributable to the defence: Jordan , para. 64 ; Williamson , para. 22 ; Cody para. 30 ; and c. Delay caused by other inappropriate defence actions or conduct as found by the trial judge.

Defence delay does not include defence actions legitimately taken to respond to the charges, for example, preparation time, applications and requests that are not frivolous: Jordan , para. 65 . Step Three: determine net delay [ 14 ] The Court must determine if the remaining delay (net delay) not caused by the defence, exceeds the presumptive ceiling: Jordan , para. 67 . If it does exceed the presumptive ceiling, then it is presumptively unreasonable: Jordan , para. 68 ; Williamson , para. 23 .

Step Four: rebutting presumed unreasonableness [ 15 ] If the net delay exceeds the presumptive ceiling, the Crown may rebut its presumed unreasonableness by demonstrating “exceptional circumstances”: Jordan , paras. 46-67 or transitional exceptional circumstances: Jordan , para. 96 . Exceptional Circumstances [ 16 ] In Jordan , the majority of the Supreme Court defined exceptional circumstances in paras. 69 and 71: [69] Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. . . . [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating an s. 11 (

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. Discrete Events [ 17 ] The Court in Jordan did not attempt to categorize all the circumstances which might be considered a discrete event.

The Court did indicate discrete events may include: a. medical or family emergencies; Jordan , para. 72 ; b. cases with international dimensions: Jordan , para. 72 ; and c. unforeseeable or unavoidable developments that arise during the trial: Jordan , para. 73 . [ 18 ] At para. 74 in Jordan , Moldaver J. noted that if at trial unforeseeable issues arise at a time close to the ceiling, it would likely be more difficult for the Crown and the court to respond to those issues with a timely solution: [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it.

In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

Complex Cases [ 19 ] Complex cases are those which, by the nature of the evidence or issues, require an inordinate amount of trial and preparation time. At para. 77, Justice Moldaver elaborates on what sort of evidence or issues may give rise to a complex case: [77] . . . As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.

Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or

complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accuseds, so long as it is in the interest of justice to do so, may also impact the complexity of the case. Transitional exceptional circumstances [ 20 ] The Supreme Court anticipated there would be a number of cases that predated its release of Jordan and the trial judge must consider whether the transitional circumstances apply.

In Jordan (at para. 96 ) and Williamson (at para. 24 ), the Court held the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied. The assessment is necessarily contextual, and should account for the manner in which that framework was applied. The Court in Jordan states at para. 96 : 96. . . . For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. [ 21 ] At para. 102 in Jordan , the Supreme Court states: [102] Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. [ 22 ] This does not mean that the old Morin test continues to apply to cases currently in the system.

The trial judge should consider whether enough time has passed for the parties to correct their behaviour and for the system to adapt before determining that the transitional exceptional circumstance exists: Jordan , para. 96 . [ 23 ] A second “transitional exceptional circumstance” is the existence of significant institutional delay problems in the court’s jurisdiction. Where the case is of moderate complexity in a jurisdiction with notorious institutional delays, the judge should consider that Crown Counsel’s behaviour will be constrained by those delays.

However, “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist”: Jordan , para.97. [ 24 ] Factors taken into consideration in assessing the transitional exceptional circumstance include the parties’ general level of diligence, the seriousness of the offence and the absence of prejudice. Step Five: deduct delay from exceptional circumstances [ 25 ] If there are exceptional circumstances as a result of discrete events which the Crown could not mitigate, then the resulting delay is deducted from the net delay.

Step Six: Defence’s burden to show unreasonableness [ 26 ] If the delay that remains is below the presumptive ceiling, the Defence bears the burden of showing it 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.

The Supreme Court commented it expected stays beneath the ceiling to be rare, and limited to clear cases: Jordan , paras. 48 and 82 . [ 27 ] The Supreme Court in Jordan at paras. 84 and 85 , describes what it means by Defence initiative in the absence of presumptive unreasonableness: [84] To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” ( Morin , at p. 802).

Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters not form. [85] To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.

While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11 (

b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. [ 28 ] The Supreme Court describes (at paras. 87 - 91) what the Defence must prove for the trial judge to find the time the case has taken markedly exceeds the reasonable time requirements of the case where there is no presumed unreasonableness: [87] . . .

The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

. . . [90] Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defenceefforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — itis unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of thedefence, trial judges should not hold the Crown to a standard of perfection.

Step Seven: stay of proceedings [29] If the delay remains above the presumptive ceiling, a stay is warranted, except with respect to complex cases. If the case iscomplex and trial judge finds the time it has taken justified, the delay is reasonable and no stay will issue. No further analysis isrequired: Jordan, para. 80. Similarly, if the case qualifies as a transitional one, the delay is reasonable and no stay will issue: Akuma,para. 7. Application of the Jordan framework Issue # 1: Does the 18 month presumptive ceiling for proceedings in the Provincial Court established in R v.

Jordan, 2016 SCC 27 apply to the sentencing phase? [30] The question as to when the clock begins ticking in s. 11(

b) Charter applications is well settled: it is the date the charge is laid:Williamson, para. 19; Akumu, at paras. 17 - 29, referencing R. v. Kalanj, [198]1 SCR 1594. When or if the clock stops ticking is not soclear cut. [31] In Jordan, Moldaver, J. referred to the Supreme Court’s 1998 decision R. v. MacDougall, , holding that s.11(

b) of the Charter applies to sentencing proceedings. Nevertheless, he declined to comment on how the new Jordan analyticalframework applies to sentencing delay. Justice Moldaver stated in footnote 2 of Jordan: This Court has held that s. 11(

b) applies to sentencing proceedings (R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reportsare required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no commentabout how this ceiling should apply to s. 11(

b) applications brought after a conviction is entered, or whether additional time should beadded to the ceiling in such cases. [32] In MacDougall, the Supreme Court reviewed whether an accused’s s. 11(

b) Charter right was breached due to a nine-monthdelay between the time he was convicted and sentenced. MacDougall indicates the protection offered by s. 11(

b) of the Charter isattenuated in the sentencing stage. Once a conviction is entered, the presumption of innocence is displaced: the accused becomes theoffender. [33] In British Columbia the B.C. Supreme Court has ruled the trial ends with conviction. In Akumu, Madam Justice Fisher adoptedthe view of Justice Kelleher in Pelletier, who held the trial ended with the verdict. The reasonableness of the delay between convictionand sentencing is to be considered independently. [34] In R. v Dadmand, 2017 BCSC 1644 , Mr.

Justice Pearlman considered the issue of whether the presumptive ceiling setout in Jordan applies to the sentencing phase, and if not, how the delay between conviction and sentencing was to be assessed. Mr.Dadmand had been convicted of five counts of sexual assault by a Supreme Court Judge after a trial. Justice Pearlman concurred withthe B.C. Supreme Court determination in Pelletier, Akumu and R. v. Millar, 2016 BCSC 1887 , that the Jordan presumptiveceiling does not apply post-conviction.

Citing Gray J. in Millar, Justice Pearlman notes at para. 27 in Dadmand: . . . when the verdict is announced, the stress and stigma of an unresolved criminal charge will have been resolved with either an acquittalor a conviction and the accused can no longer be prejudiced in mounting a defence. [35] As to how the reasonableness of the delay between conviction and sentencing is to be considered, Justice Pearlman comments atparas. 56 and 57: [56] In the absence of specific guidance concerning the assessment of delay in the sentencing process, the guiding principle I takefrom Jordan and Cody is that criminal trials, including the sentencing phase, should proceed as expeditiously and efficiently as thecircumstances of the particular case permit.

Preparation and hearing time will vary with the nature of the sentencing proceedings andtheir complexity. [57 In considering the time elapsed between verdict the anticipated end of sentencing, I also bear in mind that sentencing is anindividualized process, tailored to the particular circumstances of the offender and the gravity of the offence. [36] The Defence argues that the determination whether the presumptive 18 month ceiling includes sentencing is contextual andought to be determined on a case-by-case basis. I do not read Dadmand and Akuma as standing for that proposition. Rather, I understandthe B.C.

Supreme Court to hold the presumptive ceiling established in Jordan begins with the charge and ends with conviction.

Although s. 11(

b) Charter rights are not exhausted with conviction, the process for determining those rights is separate and independent of the Jordan analysis. [ 37 ] Accordingly, I find the relevant dates are from the swearing of the Information 44260-1 on February 3, 2016, until March 3 2017, when the Court convicted D.C.R. of sexual assault as charged under Count 1.

Hence, D.C.R. was convicted after trial 13 months from the date he was originally charged with the offence. [ 38 ] In the event I am wrong on this point, I will nevertheless consider whether there was any delay resulting from defence waiver, defence conduct or extraordinary circumstances. Defence Waiver [ 39 ] There is no defence waiver. Defence Delay [ 40 ] The Crown argues the following periods ought to be assigned to the defence: a. the defence’s late breaking Charter application; b. the defence’s application to have the presentence reports struck and recommissioned. [ 41 ] Document 7 of Exhibit 1 shows Mr.

Pakenham wrote to Crown counsel seeking a copy of the Feeney warrant on the evening of December 22, 2016. The next morning Crown Counsel responded saying he did not think there was such a warrant. Although this inquiry ought to have been made well in advance of the trial date, I am left with the impression the Crown disclosure did not clearly indicate the absence of a warrant. [ 42 ] Other than being late in the day, the Defence’s Charter application was neither frivolous nor unsuccessful.

I found the investigating officer did infringe D.C.R.’s ss. 7 , 8 and 9 Charter rights, as set out in para. 140 of my decision, which states: [140] I find Constable Baird’s conduct infringed D.C.R.’s s. 7 , 8 and 9 Charter rights as a follows: a. by entering D.C.R.’s residence to effect his arrest without legal authority and without consent, the officer infringed D.C.R.’s right under s. 8 to a reasonable expectation of privacy; b. by handcuffing and forcibly removing D.C.R. from his home without legal authority, the officer infringed D.C.R.’s right under s. 9 not to be arbitrarily detained; c. the infringement of D.C.R.’s ss. 8 and 9 rights are automatically a violation of his right under s. 7 to liberty and security of person.

I do not find an independent breach of D.C.R.’s s. 7 rights arising from Constable Baird’s testimony at trial. [ 43 ] Although I declined to order a stay of proceeding of the charge of sexual assault (s. 271), I did not foreclose the possibility of the court considering less draconian Charter remedies on sentencing. [ 44 ] I do not find D.C.R.’s Charter application significantly delayed the trial. The application was argued upon the conclusion of the trial at the same time as counsel made submissions on the merits.

No additional witnesses were called. [ 45 ] The Crown also argues the defence caused unnecessary delay by using the entire time set aside for sentencing on June 7, 2017, to argue the presentence reports ought to be struck and recommissioned. The Crown agreed to redact the presentence reports when Mr. Pakenham alerted him to the offending passages.

Ultimately, I dismissed Defence’s application to have the presentence reports struck and recommissioned and instead ordered: a. counsel can redact the clearly inappropriate passages; b. counsel can revise the incorrect passages; c. the court can ignore troubling, but less offensive comments; d. at the sentencing hearing, the Crown and Defence can bring to the Court’s attention further redactions or modifications they believe appropriate; and e. if the Crown and Defence cannot agree, the Defence can apply for an order requiring the authors of the reports attend the sentencing hearing for cross-examination. [ 46 ] Although the weight of the authorities militated against recommissioning the presentence reports, the Defence’s application was far from frivolous.

The authors’ impugned comments raised a legitimate concern about the overall fairness of their reports. The fact the Court concluded the Defence’s concerns could be addressed through less draconian measures does not render the Defence’s application

meritless. Extraordinary Circumstances Complex Case [ 47 ] The Crown has not argued this is a complex case, nor should it. Although the charges were serious, the Crown proceeded summarily against one accused. The trial was heard over three days and involved two Crown witnesses, two Defence witnesses and two Exhibits.

Discrete Events [ 48 ] The Crown argued the following delays constituted discrete events: a. the July 6, 2017 adjournment of the sentencing hearing for lack of court time; and b. the issues arising from the presentence reports. [ 49 ] With respect to the July 6, 2017 adjournment, the Crown submits the sentencing hearing ought not to have been scheduled on that date. In essence, it was a scheduling mistake.

The Defence, on the other hand, argues the July 6, 2017 adjournment was what the Morin framework characterized as “institutional delay.” [ 50 ] The July 6, 2017 sentencing hearing was adjourned because the Court gave other pressing matters precedence. In Jordan , the majority stated at para. 81: [81] To be clear, 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.

As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang- related a ctivity. Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached.

Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay. [ 51 ] To the extent it is relevant to D.C.R.’s s. 11(

b) Charter rights post-conviction, I find the July 6, 2017 adjournment was not a discrete event of the nature described in Jordan . A Provincial Court Judge is routinely confronted with a crowded docket. Just as routinely, seemingly impossible lists are pared down by counsel initiated adjournments, resolutions, withdrawals and non-appearances. Nevertheless, the court often has to determine which serious matter will proceed and which will be adjourned. This is what occurred on July 6, 2017.

I would not characterize it as a discrete event. [ 52 ] Similarly, presentence reports often contain problematic comments and opinions which have to be addressed. The Defence’s application to have the reports struck and recommissioned gave rise to a one month delay between June 7, 2017 and July 6, 2017. I would not characterize this delay as a discrete event. Transitional Delay [ 53 ] D.C.R. was charged under Information 44260-01 on February 3, 2016. The Supreme Court released it decisions in Jordan on July 8, 2016.

Up until the time Jordan was released, D.C.R.’s case proceeded as expeditiously as can be expected. All delay-producing events occurred after Jordan was released. For example, on September 22, 2016, the Crown adjourned the first trial date scheduled for October 3, 2016. At the time, the Crown expressly accepted responsibility for the ensuing delay. Nevertheless, the trial was rescheduled less than three months later on December 23, 2016. [ 54 ] The Crown asserts that the Defence ought to have identified that more than one day was required for trial when it was scheduled.

It appears that both parties ought to have sought at a minimum two days for the trial. Still, at the conclusion of the first day of trial on December 23, 2016, the parties quickly identified continuation dates and save for my decision, the trial concluded less than six weeks later on February 2, 2017. Conclusion on Issue #1 [ 55 ] In my view the Jordan 18 month ceiling applies to the delay in the context of this case, and the transitional circumstances need not factor into the analysis. The relevant period is from February 3, 2016 to March 3, 2017.

I find there was no defence waiver or delay during or after that period. There was Crown induced delay of 81 days for having adjourned the first trial date; there was Court induced delay of 82 days arising from adjourning the July 6, 2017 sentencing date.

Issue #2: If the 18 month presumptive ceiling does not apply between the conviction and sentencing, then how is delay in thatperiod to be assessed? [56] Because the net delay in this case is less than Jordan’s presumptive 18 month ceiling, the Court presumes the delay wasreasonable. D.C.R. bears the burden to show he took meaningful steps and made a sustained effort to expedite the proceedings and thecase took markedly longer than reasonably expected: Jordan at paras. 84, 87. [57] In order to assess “reasonableness”, the court must recognize the limited scope of s. 11(

b) Charter protection when applied tothe sentencing process. Because the accused has now been found guilty, the court places greater emphasis on society’s interests inimposing the appropriate sentence on the offender and more narrowly defines the procedural protections accorded to the offender onsentencing: Dadmand, at para. 59, citing R. v. Jones, (SCC). [58] Much of the post-conviction delay in this case was attributable to obtaining and dealing with the presentence reports.

Atparagraph 61 in Dadmand, Justice Pearlman cites the following passage from the Justice McIsaac from the Ontario Superior Court ofJustice in R. v. Vincent, (ON SC): [4] A court called upon to assess a claim for a stay of proceedings based on an allegation of unreasonable delay must undertake adelicate balancing of the interests that the

section of the Charter was designed to protect, including societal interests, along with thereasons for the delay: see R. v. Morin, supra, at p. 13. As well, the same case reminds us that, in the absence of either inferred or provedprejudice, the need for enforcement of the right becomes, to a great degree, notional: see p.23. Given the various interests in tension, I ampersuaded that the fundamental change of status of the applicant from accused to offender justifies the fulcrum being moved in favour ofthe public interest: see R. v. Teskey, [2003] A.J. No. 648 (Q.B.) at para. 28.

The delay related to the need to find out what makes theapplicant "tick" far outweighs his liberty and security interests. I am sure that the public would tolerate a delay in a prompt sentence infavour of a fully-informed sentence. [59] There is some argument the Morin framework still ought to apply to the sentencing process.

Morin factors included: (1) thelength of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, crowndelay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and afair trial: Jordan at para. 30.

The majority in Jordan characterized the Morin framework as “highly unpredictable” and “undulycomplex”: Jordan, paras. 32, 37. [60] In Dadmand, Justice Pearlman, sought guidance from the Supreme Court’s decision in MacDougall to assess whether delay insentencing violated the offender’s 11(

b) Charter rights. The factors cited in para. 60 of MacDougall included: a. whether the delay was unreasonable, taking into account: I. the length of the delay; II. the reasons for the delay; III. the effect of any waivers of delay; and b. the prejudice suffered by the accused. Issue #3: Have D.C.R.’s s. 11(

b) Charter rights been infringed? [61] Applying the MacDougall factors to the circumstances in this case, I find: a. The length of delay in sentencing from conviction to the anticipated sentencing date (September 27, 2017) was almost sevenmonths. b.

The delay was a result of: i. the court ordering a presentence report on March 3, 2017; ii. the court ordering a psychiatric assessment report on April 13, 2017; iii. the Defence using the first sentencing hearing date to argue the presentence and psychiatric assessmentreports ought to be struck as a result of impermissible content (June 7, 2017); iv. the Court adjourning the second sentencing hearing date (July 6, 2017) due to lack of court time; and v. the Defence using the third sentencing hearing date (September 27, 2017) to argue the s. 11(

b) Charterapplication for a judicial stay. c. The Defence implicitly waived the delay arising from the September 27, 2017 from the s. 11(

b) Charter application.

d.

With respect to the prejudice, I note: i. there is no indication the delay in sentencing has impeded D.C.R.’s ability to call evidence at thesentencing hearing; ii. there is no indication the delay in sentencing has prevented D.C.R. from engaging in rehabilitativeprograms if he chose to do so; iii. the prejudice to D.C.R. as a result of the delay likely included the ongoing stress and anxiety of arisingfrom uncertainty of his sentence; iv. the defence has not identified how the delay in sentencing has adversely impacted the fairness of thesentencing process; v. although D.C.R. is not in custody, he is subject to bail conditions which restrict his mobility andassociations.

The overall adverse effect of the delay was to prolong D.C.R.’s restrictive bail conditions, however these were relaxedslightly on June 7, 2016; vi. the delay has not significantly prejudiced D.C.R.’s liberty interests. Had the sentencing proceeded earlier,D.C.R. would likely have been subject to restrictions on his mobility and associations in any event; vii. D.C.R. is not precluded from asking the court to recognize his compliance with strict bail conditions as amitigating factor on sentencing: R. v. Plowman, 2015 BCCA 423 ; R. v.

Downes, (ONCA); and viii. the prejudice to D.C.R. as a result in the delay in sentencing is outweighed by society’s interests in ensuringthat the court has full and accurate information in order to determine an appropriate sentence for this first time offender. Conclusion [62] The time between the charge date and the end of trial fell well within Jordan’s 18 month presumptive ceiling. Although I donot attribute any delay to defence, I do not find the case took markedly longer than it reasonably should have. This is not a clear case fora stay of proceedings.

D.C.R.’s application for a judicial stay of proceedings pursuant to s. 11(

b) of the Charter is therefore dismissed. _____________________ J. T. Doulis Provincial Court Judge